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EPA’S ANIMAS SPILL 

JOINT OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

AND THE

COMMITTEE ON OVERSIGHT AND 

GOVERNMENT REFORM 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

Thursday, September 17, 2015 

Serial No. 114–20 

(Committee on Natural Resources) 

Serial No. 114–62 

(Committee on Oversight and Government Reform) 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Thomas MacArthur, NJ 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Vacancy 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Wm. Lacy Clay, MO 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

(III) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Staff Director 

DAVID RAPALLO, Minority Staff Director 

KATIE BAILEY, Professional Staff Member 

SARAH VANCE, Clerk 

(V) 

CONTENTS 

Page 

Hearing held on Thursday, September 17, 2015 ................................................... 1 

Statement of Members: 

Bishop, Hon. Rob, a Representative in Congress from the State of Utah ... 1 

Prepared statement of ............................................................................... 3 

Cartwright, Hon. Matt, a Representative in Congress from the State 

of Pennsylvania ............................................................................................. 8 

Chaffetz, Hon. Jason, a Representative in Congress from the State of 

Utah ............................................................................................................... 7 

Grijalva, Hon. Rau ́l M., a Representative in Congress from the State 

of Arizona ...................................................................................................... 4 

Prepared statement of ............................................................................... 6 

Statement of Witnesses: 

Begaye, Russell, President, Navajo Nation, Window Rock, Arizona ............ 79 

Prepared statement of ............................................................................... 80 

Questions submitted for the record ......................................................... 86 

Flynn, Ryan, Secretary of Environment and Natural Resource Trustee, 

State of New Mexico, Sante Fe, New Mexico ............................................. 97 

Prepared statement of ............................................................................... 98 

Questions submitted for the record ......................................................... 101 

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

Washington, DC ............................................................................................ 10 

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

Questions submitted for the record ......................................................... 13 

Olguin, Mike, Member, Tribal Council, Southern Ute Indian Tribe, 

Ignacio, Colorado ........................................................................................... 88 

Prepared statement of ............................................................................... 89 

Questions submitted for the record ......................................................... 92 

Wolk, Larry, Executive Director and Chief Medical Officer, Colorado 

Department of Public Health and Environment, Denver, Colorado ......... 93 

Prepared statement of ............................................................................... 95 

Questions submitted for the record ......................................................... 96 

Additional Materials Submitted for the Record: 

Fox News report, ‘‘Before Colorado mine disaster, EPA project caused 

spill in Georgia,’’ by Watchdog.org, August 20, 2015 ................................. 63 

Gold King Mine Task Order Statement of Work, August 17, 2015, 

prepared for EPA Region 8 ERRS by Environmental Restoration, LLC . 135 

Hennis, Todd, President of San Juan Corporation of Colorado and Owner 

of the Gold King Mine, prepared statement of ........................................... 131 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 146 

Standard Form 95, Claim for Damage, Injury, or Death from the U.S. 

Environmental Protection Agency for Gold King Mine Release Claims .. 31 

Summary Report from the U.S. Environmental Protection Agency’s 

Internal Review of the August 5, 2015 Gold King Mine Blowout ............. 138 

U.S. Environmental Protection Agency Region 8, August 17, 2015 Memorandum providing partial chronology of events from the Gold King 

Mine Release incident ................................................................................... 112 

Wall Street Journal article, ‘‘Salvaging a Lesson From the Animas River 

Spill,’’ by Bill Wehrum, September 9, 2015 ................................................ 53 

(1) 

JOINT OVERSIGHT HEARING ON EPA’S 

ANIMAS SPILL 

Thursday, September 17, 2015 

U.S. House of Representatives 

Committee on Natural Resources 

joint with the 

Committee on Oversight and Government Reform 

Washington, DC 

The committees met, pursuant to notice, at 10:08 a.m., in room 

2167, Rayburn House Office Building, Washington, DC, Hon. Rob 

Bishop [Chairman of the Committee on Natural Resources] 

presiding. 

Present from the Committee on Natural Resources: Representatives Bishop, Gohmert, Lamborn, Fleming, McClintock, Lummis, 

Duncan, Gosar, Labrador, LaMalfa, Westerman, Newhouse, Hice, 

Hardy; Grijalva, Napolitano, Tsongas, Huffman, Lowenthal, 

Cartwright, Beyer, and Gallego. 

Present from the Committee on Oversight and Government 

Reform: Representatives Chaffetz, Mica, Jordan, Walberg, Amash, 

Gosar, Gowdy, Lummis, Massie, Meadows, DeSantis, Mulvaney, 

Buck, Walker, Blum, Hice, Carter, Grothman, Hurd, Palmer; 

Maloney, Norton, Clay, Lynch, Connolly, Cartwright, Lieu, Watson 

Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham. 

Also present: Representative Tipton, Pearce; and Luja ́n. 

Chairman CHAFFETZ. The Committee on Oversight and 

Government Reform and the Committee on Natural Resources will 

come to order. Without objection, the Chair is authorized to declare 

a recess at any time. 

I am pleased to have both committees here, and I am pleased to 

recognize the Chairman of the Committee on Natural Resources, 

my colleague from Utah, Mr. Bishop, for 5 minutes for his opening 

statement. 

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF UTAH 

The CHAIRMAN. Hey, you started the clock, and I could not even 

find the button to turn this on. Thank you, Mr. Chaffetz, it is nice 

to be here with you. 

Over a year ago, EPA began remediation on the Gold King Mine 

in Colorado that ultimately led to 3 million gallons of orange crap 

that went down the Animas and San Juan Rivers from Colorado 

into New Mexico, Utah, and perhaps even into Arizona. 

EPA documents show the Agency was aware as early as June of 

2014 that a massive blowout was possible. However, EPA decided 

not to test the hydrostatic pressure in the mine. Instead, they just 

simply dug around it with heavy machinery. If an individual or private company had done this, EPA would already have made sure 

there was hell to pay. 

2 

EPA’s aggressive enforcement tactics have often resulted in 

criminal charges for mistakes or accidents. In Alaska, armed EPA 

agents descended on a small mining town based on speculation 

that individuals may have violated the Clean Water Act. In 

Wyoming, EPA is threatening a rancher with $75,000 a day in 

fines because he built a stock pond on his own land. One dismissed 

EPA regional director spoke of crucifying someone to make an example for others. I even have a constituent who had jail time because he tried to work with the EPA; and EPA told him, when he 

asked for advice on how to solve his problem, ‘‘We don’t advise, we 

just regulate.’’ 

Evidence from states across this Nation demonstrate that EPA is 

more concerned with the enforcing of a heavy-handed regulation 

than actually protecting our resources. Now, EPA has violated not 

only this issue, but also violated environmental laws, like the 

Clean Water Act and the Endangered Species Act. 

Making sure EPA is held accountable for the spill it caused is the 

primary reason for today’s hearing. Another is to hear from those 

who are affected by EPA’s action. We want to find out what happened, how to solve it, and how to make sure it does not happen 

again. We want to find out why EPA was so slow in notifying 

downstream users of what was happening to them. EPA basically 

sat back and let others do the work of informing; and when those 

authorities asked EPA for information about the spill, or for access 

to the results of the water quality or sediment sampling plans, 

EPA simply delayed. 

I find that the states of New Mexico, Utah, and Colorado were 

quick and competent in their efforts. I am very proud of what the 

tribes were doing in this area. They were effective with the resources that they actually had. Even EPA workers who worked on 

the ground, I thought did a great job; but even they were kept in 

the dark by EPA Washington. 

EPA is not alone in this shameful behavior. The Interior Department was nearly invisible in the wake of the spill, despite the fact 

that every one of their agencies has some jurisdiction. The Bureau 

of Reclamation released over a billion gallons of water from the 

Navajo Dam to dilute the spill. I would like to know who did that, 

why, and understand the problems that resulted from that release 

of water. 

But the agencies who were simply there, like the Fish and 

Wildlife, the Park Service, and BLM, they have responsibility; but 

they were AWOL, and they should be held accountable for some of 

the results, as well. 

I am disappointed the Department of the Interior is not here to 

testify on how they will go about their separate investigation. We 

need to know what the scope of that investigation is, and waiting 

60 days in sacrosanct area while they make their decisions is a 

wrong approach. We need to know ahead of time if the wrong questions are being asked in the first place. That is why I wish the 

Department of the Interior was actually here to testify on how they 

are going to go about their review of what is going on. 

Finally, I have one other complaint. I understand that 

Administrator McCarthy agreed to come only if she appeared first 

and on her own panel; that is something we would not do in my 

3 

committee. You are lucky that this is a joint committee. Refusing 

to sit alongside representatives of the states and tribes that have 

traveled across this country to discuss this disaster is simply unheard of, and is wrong. It is arrogance, and it is hubris. It goes 

through the Agency, and it should not take place. The Administration does not deserve special treatment; they should be at the same 

panel with the same other people. I am sorry, I find this request 

shameful. The first thing you should do is apologize to the Navajo 

Nation and the Southern Utes in New Mexico and Colorado for refusing to sit at the same table and take the same questions with 

them. 

Both the EPA and the Department of the Interior will be held 

accountable, today and in the future, as the recovery efforts continue. I look forward to this hearing to find out specifics of what 

happened and how we solve this in the future, so that we do not 

replicate this again. 

Before we move forward on any other kind of reclamation in this 

effort, we have to make sure that we do not recreate the mistakes 

that we have done in the past. Accountability is going to be important. I look forward to hearing the testimony of all the witnesses 

that are here, and I yield back. 

[The prepared statement of Chairman Bishop follows:] 

PREPARED STATEMENT OF THE HON. ROB BISHOP, CHAIRMAN, COMMITTEE ON

NATURAL RESOURCES

Over a year ago, EPA began to investigate remediation of the Gold King Mine 

near Silverton, Colorado. That work culminated last month in the disastrous spill 

of 3 million gallons of orange mine water containing toxic heavy metals including 

lead, cadmium, and arsenic. The plume flowed along the Animas and San Juan 

Rivers from Colorado and into New Mexico, Utah, and Arizona. 

EPA documents show the Agency was aware as early as June 2014 that a massive 

blowout was possible. However, EPA decided not to test the hydrostatic pressure in 

the mine. Instead, it dug around with heavy machinery. If an individual or a private 

company had done this, EPA would have already made sure there was hell to pay. 

Americans have repeatedly witnessed EPA’s aggressive enforcement tactics, which 

often result in criminal charges for true mistakes or accidents. In Alaska, armed 

EPA agents descended on a small mining town based on speculation that individuals 

may have violated the Clean Water Act. In Wyoming, EPA is threatening a rancher 

with $75,000 in fines a day because he built a stock pond on his own land. One 

dismissed EPA Regional Director even spoke of crucifying someone to make an 

example for others. 

Evidence from every state demonstrates EPA is more concerned with enforcing a 

heavy handed regulatory agenda than responsibly protecting our natural resources. 

Now we hear from EPA that the Animas River is under control, despite EPA’s 

violating environmental laws like the Clean Water Act and Endangered Species Act. 

Making sure EPA is held accountable for the spill it caused is the primary reason 

for today’s hearing. Another is to hear from those affected by EPA’s actions. 

Instead of notifying downstream users and the appropriate tribal, state, and local 

authorities that a toxic plume was headed toward them, EPA sat back and let others do the work. And when those authorities asked EPA for information about the 

spill and for access to the results of water quality and sediment sampling plans, 

EPA obfuscated and delayed. So much for ‘‘transparency.’’ 

EPA is not alone in its shameful behavior. The Department of the Interior has 

been nearly invisible in the wake of the spill—despite nearly every one of its agencies having jurisdiction. The Bureau of Reclamation—the agency tasked with conducting a review of EPA’s spill—released 1.3 billion gallons of water from the 

Navajo Dam to help dilute the spill. The USGS has conducted sampling and helped 

estimate the spill’s volume. The Fish and Wildlife Service, the National Park 

Service, and the BLM are entrusted with managing wildlife resources and Federal 

lands. And finally, the Bureau of Indian affairs ensures the Federal Government’s 

trust responsibility to tribes is honored. 

4 

Let me be clear. Secretary Jewell’s refusal to testify today is especially egregious 

and disappointing, given the magnitude of this disaster and the breadth of its effect 

on her agency. As Chair of the White House Council on Native American Affairs, 

her absence runs counter to that Council’s stated trust responsibilities. As 

Chairman, I will expect her to appear before the committee in the near future to 

provide answers. An eleventh hour, unsigned statement and ‘‘no show’’ is simply unacceptable and cannot be tolerated. 

I understand Administrator McCarthy agreed to come only if she appeared first 

and on her own panel—refusing to sit alongside representatives of states and tribes 

that traveled across the country to discuss the disaster her agency unleashed in 

their backyard. 

Despite our Government’s foundation by states on the principles of federalism, the 

Federal Government’s trust and treaty obligations to tribes, the EPA Administrator, 

at least in my view, should not be given special treatment. 

I expect we will hear the words ‘‘1872 Mining Law’’ repeatedly from both the 

Administration and the minority, as they attempt to ignore EPA’s culpability, shift 

blame, and pursue action on an agenda that would decimate the mining industry. 

That is not why we are here today. This hearing is to hold the EPA accountable 

for the disaster they caused and ensure states, tribes, and affected property owners 

know what to expect as recovery efforts move forward. 

Chairman CHAFFETZ. I thank the gentleman. I now recognize Mr. 

Grijalva, the Ranking Member of the Committee on Natural 

Resources, for his opening statement. 

STATEMENT OF THE HON. RAU ́ L GRIJALVA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. GRIJALVA. Thank you, Mr. Chairman. Also, thank you to 

Chairman Bishop for holding this hearing. 

I would like to believe that Republicans are holding so many 

hearings on this particular incident because they genuinely care 

about water quality, wildlife, and public health of affected communities. I would like to believe that this has opened your eyes to the 

problem of abandoned mines throughout the West, acid mine drainage, and the difficult task of cleaning this mess up. Unfortunately, 

as much as I would like to believe, we all know this is not the case. 

The Majority’s overwhelming interest in this issue comes from 

the fact that it was the Environmental Protection Agency that was 

holding the shovel when the spill occurred, and the Majority cannot 

pass up a chance to attack EPA. For them, this is a gold mine. This 

is being mined like a political gold mine, and the Gold Rush is on. 

I am not here to defend EPA on this issue at all. They made a 

mistake, particularly when it came to notifying the Navajo Nation 

and others in New Mexico about the spill, the consequences, and 

the mitigation that was going to be needed. This spill imposed real 

costs on people downstream. 

The legitimate claims from people affected by this spill deserve 

to be dealt with quickly, and I hope they will be made whole quickly. But it is important to put this incident in perspective, which is 

so sorely lacking around here. 

First, the EPA and the state of Colorado were there to clean up 

someone else’s mess. The EPA and the state of Colorado did not 

hollow out the inside of these mountains in the search for gold. 

They did not simply pick up and leave when things were not profitable any more; those were the owners and operators of the Gold 

King Mine. But Colorado and the EPA were there this summer, as 

5 

they have been for years, working closely with local stakeholders, 

trying to figure out a way to clean the mess up. 

Second, this was not a pristine mountain stream. The four mines 

on the Cement Creek had been leaking 330 million gallons of acid 

mine drainage each year. The EPA spill released 3 million gallons. 

That effectively means that there is an equivalent-sized spill every 

3 days on the river. Let me put it another way. This is the juice 

box that we are all used to—well, at least my grandkids use all the 

time—it represents the amount of wastewater that was spilled on 

August 5 because of EPA. This water jug represents the amount 

that goes into the river each year. 

Third, it is important to point out that EPA was not there by 

itself. In addition to the longtime support of the local community, 

which has fought pollution from these mines for well over a century, the EPA was there in partnership with the state of Colorado, 

a partnership that has existed for decades. 

It was the EPA and the Colorado Department of Public Health 

and Environment that investigated the site back in the 1990s. It 

was EPA and the Colorado Division of Reclamation, Mining and 

Safety that were working to stop the drainage from these mines; 

and both of these agencies concluded there would not be a blowout 

at the Gold King Mine. 

But what we need more than perspective on this particular spill, 

is perspective on the entire issue. The problem here is a horribly 

outdated mining law that dates back to the time of the telegraph 

and the horse and buggy. We now have phones we carry in our 

pockets, but our mining law remains stuck in 1872. Because of that 

law, we have over a half million abandoned mines in this Nation, 

tens of thousands of miles of rivers contaminated with acid mine 

waste, and not nearly enough money to clean this all up. It is time 

to update this outdated relic. 

Earlier this year, I introduced the Hardrock Mining Reform and 

Reclamation Act. It gives us a modern mining law with strong environmental and public health protection. It raises the money to 

help clean up abandoned hardrock mines from coast to coast. 

Sadly, no Republicans have agreed to co-sponsor this bill yet. 

Whether it is uranium proposals to mine dangerously close to the 

Grand Canyon, whether it is gold in New Mexico, or copper ore in 

Arizona, the fact remains that, as these companies leave, they 

leave behind—to the miners that worked hard on those tough jobs, 

to the affected communities, they are left to pick up and have to 

deal with all the consequences of contamination that are left behind. 

Hardrock mining, because of the law, pays no royalties at all. It 

is time that the Majority, if they really care about what is happening to these communities and the rivers in the West, I invite 

them to join me in trying to reform our 19th century mining laws. 

With that, Mr. Chairman, thank you, and I yield back. 

[The prepared statement of Mr. Grijalva follows:] 

6 

PREPARED STATEMENT OF THE HON. RAU ́ L M. GRIJALVA, RANKING MEMBER, COMMITTEE ON NATURAL RESOURCES

Thank you, Mr. Chairman, and thank you and Chairman Bishop for holding this 

hearing. 

I would like to believe that Republicans are holding so many hearings on this 

particular incident because they genuinely care about water quality and wildlife. 

I would like to believe that this has opened your eyes to the problem of abandoned 

mines throughout the West, and acid mine drainage, and the difficult task of 

cleaning this mess up. 

Unfortunately, we all know that is not the case. 

The Majority’s overwhelming interest in this issue comes from the fact that it was 

the Environmental Protection Agency that was holding the shovel when the spill occurred, and the Majority cannot pass up a chance to attack the EPA. For them, this 

gold mine has really been a gold mine. 

I am not here to defend the EPA on this issue. They made a mistake, particularly 

when it came to notifying the Navajo Nation and others in New Mexico, and this 

spill imposed real costs on people downstream. 

The legitimate claims from people affected by this spill deserve to be dealt with 

quickly, and I hope they will be made whole as soon as possible. 

But it is important to put this incident in perspective, which is so sorely lacking 

around here. 

First, the EPA and the state of Colorado were there to clean up someone else’s 

mess. They did not hollow out the inside of these mountains in search of gold. They 

did not simply pick up and leave when things weren’t profitable enough—that was 

the owners and operators of the Gold King Mine. 

But they were there this summer, as they have been for years, working closely 

with local stakeholders, trying to figure out a way to clean this mess up. 

Second, this was not a pristine mountain stream. The four mines on Cement 

Creek had been leaking 330 million gallons of acid mine drainage each year. The 

EPA spill released 3 million gallons. 

That effectively means that there’s an equivalent sized spill every 3 days on this 

river. 

Let me put that another way. If this juice box represents the amount of wastewater that was spilled on August 5 because of the EPA, then this water jug 

represents the amount that goes into the river each year. 

Third, it’s important to point out that EPA was not there by itself. In addition 

to the longtime support of the local community, which has fought water pollution 

from these mines for well over a century, the EPA was there in partnership with 

the state of Colorado, a partnership that has existed for decades. 

It was EPA and the Colorado Department of Public Health and Environment that 

investigated the site back in the 1990s. 

It was EPA and the Colorado Division of Reclamation, Mining and Safety that 

were working to stop the drainage from these mines, and both of those agencies 

concluded there wouldn’t be a blowout at the Gold King Mine. 

But what we need more than perspective on this particular spill is perspective on 

the entire issue. 

The problem here is a horribly outdated mining law that dates back to the time 

of the telegraph and the horse and buggy. 

We now have phones we carry in our pockets. But our mining law remains stuck 

in 1872. 

Because of that law, we have a half million abandoned mines in this Nation, tens 

of thousands of miles of rivers contaminated with acid mine waste, and not nearly 

enough money to clean this all up. 

It is time to update this outdated relic. 

Earlier this year I introduced the Hardrock Mining Reform and Reclamation Act. 

It gives us a modern mining law, with strong environmental protections, and it 

raises the money to help clean up abandoned hardrock mines from coast to coast. 

Sadly, no Republicans have agreed to co-sponsor this bill yet. 

If the Majority really cares about what’s happening to the communities and the 

rivers in the West, I invite them to join me in trying to reform our 19th century 

mining laws. 

I yield back. 

Chairman CHAFFETZ. Thank you. I will now recognize myself for 

5 minutes. 

7 

STATEMENT OF THE HON. JASON CHAFFETZ, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH 

Chairman CHAFFETZ. In Colorado last month, there was a massive environmental disaster. Three million gallons of polluted mine 

wastewater spilled into the Animas River in a matter of hours. It 

was the worst ecological catastrophe in the region in recent memory. The spill released a mustard-colored plume into the regional 

river system stretching some 80 miles long. We have a video that 

I would like to show of what happened. 

[Video shown.] 

Chairman CHAFFETZ. All right, when they fix that we will come 

back to it. That is not the right video. 

So, what caused the accident? What caused the accident? The 

Environmental Protection Agency. My colleagues and I often disagree on the merits of EPA’s action. However, I am certain that everyone in this room can agree that EPA should not be making the 

environment worse. 

We are here to examine how this disaster happened. We are also 

here to examine how it was managed. Most importantly, we are 

here to make sure it never, ever happens again. 

The EPA must be held fully accountable for the accident. Last 

year, a private company in West Virginia accidentally released 

roughly 7,500 gallons of chemicals into the river. Remember, this 

spill was 3 million gallons. The EPA immediately began a criminal 

investigation. The EPA built a case against the company that resulted in criminal indictments for six employees. The company was 

forced to declare bankruptcy. 

In 1999, a private company in Alaska inadvertently spilled 1,500 

gallons of oil into a nearby river. The project manager of the site 

was sentenced to prison—prison—for 6 months. Yet, I have heard 

the EPA Administrator go on television, saying, ‘‘We hold our 

people to an even higher standard.’’ I am not aware of anybody who 

has been dismissed, held accountable, let alone given some criminal 

charges along the way. 

In the aftermath of the Deep Horizon’s oil spill in 2010, 

President Obama demanded that those responsible be held fully accountable. When asked if he would fire the CEO of the company 

responsible, President Obama said, ‘‘He wouldn’t be working for 

me.’’ Has anything happened to any of the EPA employees who 

were responsible for this? Not a thing. The EPA should not get special treatment or avoid the consequences they have instituted on 

others. 

One of the more offensive things that I heard as I visited with 

the President of the Navajo Nation, who was deeply affected by 

this, is that days—days—after this, we had EPA employees walking the banks of the river. They were not there to do a cleanup, 

not there to help with the cows, the cattle, and other things, but 

they were out there, handing out these waiver forms, trying to get 

a waiver form signed to limit the liability, days after this happened. Many of these people do not even speak English, and yet 

you had employees of the Federal Government working for you out 

there trying to limit their liability. That is so fundamentally, 

totally wrong and offensive. 

8 

Did the EPA call the Navajo Nation to let them know what was 

happening right away? No. It was 48 hours until you bothered to 

even make contact with the Navajo Nation. Then, when you offered 

support, two people came down—two—to go sit in the Control 

Center, basically to spy and to see what was going on there. They 

were not down there working hard to get this thing cleaned up. We 

are going to hear from the President of the Navajo Nation. He is 

the one that told us about this and what is going on. 

You can shake your head no, but that is exactly what happened. 

It is highly offensive—hand out waiver forms, try to limit the liability, instead of taking care of what you knew was happening more 

than a year in advance—more than a year in advance. That is 

what is so deeply concerning here. 

There is one other point that I would like to make as we go along 

in this. In June of 2014, the EPA contracted with Environmental 

Restoration, a company, to work the Gold King Mine. In the contract—again, more than a year in advance—the contract says, 

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

blockages and cause a release of large volumes of contaminated 

mine waters and sediment from inside the mine, which contain 

concentrated heavy metals.’’ They knew this was a distinct possibility; they knew that this was going to happen more than a year 

in advance. Yet, obviously, they did not take the necessary precautions to make sure that this did not happen. 

We want to have some answers to that, and a host of other questions. We do appreciate you being here today, and we look forward 

to a lively discussion. 

I would like to recognize Mr. Cartwright, the gentleman from 

Pennsylvania, for his comments and opening statement. 

STATEMENT OF THE HON. MATT CARTWRIGHT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. CARTWRIGHT. Thank you, Mr. Chairman, and thank you, 

Administrator McCarthy, for appearing before us. I understand 

this is your third time testifying this week about this specific topic, 

and I understand this is the fourth hearing overall on the question 

of the Gold King Mine release. 

It is certainly appropriate for Congress to examine this spill, how 

it happened, whether it could have been prevented, how it was 

handled, and what can be done to prevent similar types of spills 

into the future. But before we begin, I want to make one very important point: While the Gold King Mine spill was damaging, as 

has been pointed out by Mr. Grijalva, this spill pales in comparison 

to a series of even bigger toxic spills from many other mines that 

have been abandoned for decades, and the cumulative effect of 

daily seepage from mines all across our Nation for more than 100 

years. 

The Animas River has been plagued by pollution caused by abandoned mines like the Gold King Mine. For example, in 1975, a dam 

broke on a pond holding mine waste, sending 50,000 tons of sludge 

into the Animas River and turning it, at that time, the color of aluminum paint. Three years later, an estimated 500 million gallons 

of water and sludge from the Sunnyside Mine turned the Animas 

River black, all the way to New Mexico. 

9 

Last week, the mayor of Durango, Colorado, Dean Brookie, 

testified before the Science Committee that ‘‘the August 5 release 

of 3 million gallons was equivalent to roughly a week’s worth of 

normal discharge from this mine.’’ He said this was a level of only 

2 percent of the annual discharge from the mine. He testified, ‘‘The 

heavy metal contamination that emanates from hundreds of separate mine sites in the mountains upstream of Durango has been 

impacting our community since the late 19th century. It is a constant, if often invisible threat to our community’s public health and 

economic well-being, and has thus far resisted thoughtful and wellintended efforts to mitigate this risk.’’ 

Now, in Pennsylvania, my own district faces this same threat of 

continual mine discharges. We used to mine coal in northeastern 

Pennsylvania, hard coal. In fact, there are 575 abandoned mine 

lands in my district, creating 382 miles of acid mine drainageaffected streams. The fact is that mining companies have not been 

held responsible for the toxic devastation they left behind. But EPA 

and states are being forced to clean up this legacy of leakage with 

resources that are completely inadequate. 

Using data obtained from the states, the environmental advocacy 

group Earthworks estimated there are more than 500,000 abandoned hardrock mines throughout the country. To clean up just 147 

of these mine sites, it would cost the Federal Government between 

$7–$24 billion, according to a 2004 estimate; but in Fiscal Year 

2015, the budget for cleaning up hardrock mine sites totaled only 

about $40 million. Congress has to provide more resources to 

address this problem. 

Congress must address the much broader problem of cleaning up 

these mine sites. That is why I am pleased to be an original cosponsor of Mr. Grijalva’s bill, the Hardrock Mining Reform and 

Reclamation Act of 2015, to help remedy the problem. 

Finally, as I said at the outset, I think it is completely appropriate to conduct oversight of EPA’s actions in this case; so the 

hearing is appropriate. But EPA has taken responsibility for this 

accident; and independent technical experts, including experts at 

the Department of the Interior and EPA’s Inspector General, are 

currently assessing what could be done differently to avoid this 

type of spill in the future, and to speed the notification of all parties involved. But, let’s take this opportunity now to focus on the 

larger issue of the devastating legacy of pollution that mining companies have left behind all across our Nation. 

Let me close by extending our welcome to the other witnesses 

today from the Navajo Nation, the Southern Ute Tribal Council, 

and from New Mexico and Colorado. I look forward to your testimony, not only about this bill, but about what steps Congress can 

take to address the much broader problems we are facing with 

water quality throughout the country. 

I thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. We are going to try 

to show this video again. I think it is less than a minute. It shows 

the start of the spill and what happened. 

[Video shown.] 

10 

Chairman CHAFFETZ. Some 3 million gallons. We are going to 

hold the record open for 5 legislative days for any Members who 

would like to submit a written statement. 

The Chair also would like to note the presence today of some of 

our colleagues: Congressman Steve Pearce of New Mexico; 

Congressman Scott Tipton of Colorado; as well as Ben Ray Luja ́n, 

also of New Mexico. We appreciate your interest in this issue, and 

look forward to your insight. I would ask unanimous consent that 

Congressmen Pearce, Luja ́n, and Tipton be allowed to fully participate in today’s hearing. 

The CHAIRMAN. Mr. Chairman, are you really sure you want 

Pearce and Tipton to be here? Can we discuss that at all? 

[Laughter.] 

Chairman CHAFFETZ. We have some great flexibility here that we 

are exercising—the Pope is coming next week, we are trying to be 

as nice as possible. 

The CHAIRMAN. All right, I will not say anything then. 

[Laughter.] 

Mr. GRIJALVA. Absolution. 

Chairman CHAFFETZ. Without objection, so ordered. 

We now recognize the distinguished witness on our first panel. 

We are pleased to welcome Ms. Gina McCarthy, the Administrator 

of the U.S. Environmental Protection Agency. 

Pursuant to Oversight and Government Reform Committee rules, 

all witnesses are to be sworn before they testify. If you would, 

please rise and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Ms. MCCARTHY. Yes, I do, Chairman. 

Chairman CHAFFETZ. Thank you. Let the record reflect the 

witness answered in the affirmative. 

Your entire written statement will, obviously, be made part of 

the record. But we would appreciate your verbal comments, and we 

now recognize you for those at this time. 

STATEMENT OF GINA MCCARTHY, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC 

Ms. MCCARTHY. Good morning, Chairmen Chaffetz and Bishop, 

Ranking—— 

Chairman CHAFFETZ. If you could, move that microphone— 

apologies. I just want to make sure the audio is sufficient. As close 

as you can. Thank you. 

Ms. MCCARTHY. All right. Better? 

Chairman CHAFFETZ. Much better, thank you. 

Ms. MCCARTHY. Good morning, Chairmen Chaffetz and Bishop, 

Ranking Members Cummings and Grijalva, and members of the 

committee. I am Gina McCarthy, Administrator of the U.S. 

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

release and subsequent EPA response. 

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

taken responsibility to ensure that it is cleaned up appropriately. 

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

11 

protect public health; and we are dedicated to continuing to do our 

job to protect the environment and to hold ourselves to the same 

high standard we demand of others. 

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

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

mine remediation. While excavating above a mine opening, the 

lower portion of the bedrock crumbled, and approximately 3 million 

gallons of pressurized water discharged from the mine into Cement 

Creek, which is a tributary to 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. Notifications to 

other downstream jurisdictions continued the following day, allowing for those intakes to be closed prior to the plume’s arrival. 

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

of the incident and we released an Internal Review Summary 

Report on August 26, which includes an assessment of the events 

and potential factors contributing to the Gold King Mine incident. 

The report provides observations, conclusions, and recommendations that regions should consider applying when conducting ongoing and planned site assessments, investigations, and construction 

or removal projects at similar types of sites across the country. The 

EPA will implement all the recommendations from the report, and 

has shared its findings with external reviewers. 

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

Interior is leading an independent assessment of the factors that 

led to the Gold King Mine incident. The goal of DOI’s independent 

review is to provide the EPA with an analysis of the incident that 

took place at the Gold King Mine, including the contributing 

causes. Both internal and external reviews will help inform the 

EPA for ongoing and planned site assessments, investigations, and 

construction or removal projects. 

One of our foremost priorities is to keep the public informed 

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

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

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

keep them apprised of water and sediment sampling results, which 

are routinely posted on our Web site. These results do indicate that 

the water and sediment have returned to pre-event conditions. 

They also supported local and state decisionmakers as they made 

decisions about lifting water restrictions along the Animas and the 

San Juan Rivers on August 14 and August 15. 

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

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

both the potential for a catastrophic release and the ongoing adverse water quality impacts caused by the significant mine discharges into the Upper Animas watershed. Based upon 2009–2014 

flow data, approximately 330 million gallons of contaminated water 

was being discharged from mines in the watershed each year to 

Cement Creek and the Animas River—that is 100 times more than 

the estimated release from the Gold King Mine on August 5. 

12 

The EPA was and continues to work with the state of Colorado 

and the Animas River Stakeholder Group to address these significant discharges from mines in the Upper Animas watershed that 

are impacting these waterways. 

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

Superfund program has successfully cleaned up more than 1,150 

hazardous waste sites, and successfully responded to or provided 

oversight for thousands of removal actions to protect human health 

and the environment. That reflects our long-standing commitment 

to protect human health and the environment that we will continue 

to pursue. We will also continue to support the Administration’s request for an Abandoned Mine Lands fee to help cover the costs of 

cleanup of these sites. 

All of the affected residents of Colorado and New Mexico and 

members of the Southern Ute, Ute Mountain Ute, and Navajo 

Nation tribes can be assured that EPA has and will continue to 

take responsibility to help ensure that the Gold King Mine release 

is cleaned up. 

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

be happy to answer any questions the committee might have. 

[The prepared statement of Ms. McCarthy follows:] 

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

PROTECTION AGENCY

Good morning Chairmen Chaffetz and Bishop, Ranking Members Cummings and 

Grijalva, and members of the committee. I am Gina McCarthy, Administrator for 

the U.S. Environmental Protection Agency. Thank you for the opportunity to appear 

today to discuss the August 5 Gold King Mine release and subsequent EPA 

response. 

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

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

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

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

standard we demand from others. 

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

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

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

opening, the lower portion of the bedrock crumbled and approximately 3 million 

gallons of pressurized water discharged from the mine into Cement Creek, a tributary of the Animas River. EPA and Colorado officials informed downstream jurisdictions in Colorado within hours of the release before the plume reached drinking 

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

to the plume’s arrival. 

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

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

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

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

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

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

report and has shared its findings with external reviewers. 

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

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

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

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

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

assessments, investigations, and construction or removal projects. 

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

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

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

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

13 

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

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

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

on August 14 and August 15. 

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

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

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

mine discharges into the Upper Animas Watershed. 

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

Cement Creek and the Animas River—100 times more than the estimated release 

from the Gold King Mine on August 5. 

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

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

Upper Animas Watershed that are impacting these waterways. 

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

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

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

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

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

help cover the costs of cleanups at these sites. 

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

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

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

King Mine release is cleaned up. 

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

any questions that you or the committee members may have. 

QUESTIONS SUBMITTED FOR THE RECORD TO ADMINISTRATOR GINA MCCARTHY, 

U.S. ENVIRONMENTAL PROTECTION AGENCY

Questions Submitted by Rep. Jason Chaffetz, Chairman, Committee on 

Oversight and Government Reform 

Question 1. Administrator McCarthy has said that Environmental Protection 

Agency (EPA) acknowledges responsibility for the Gold King release. What is the 

extent of the ‘‘responsibility’’ EPA is willing to assume? 

Answer. The EPA has taken responsibility to ensure that the release from Gold 

King Mine is cleaned up appropriately. The Agency is committed to working closely 

with response agencies and state, local and tribal officials to respond to concerns 

and to evaluate impacts to public health and the environment. 

On August 26,2015, with a December 8, 2015, addendum, the Agency issued an 

internal review of the events leading up to the blowout. The Summary Report and 

addendum are posted on the EPA Web site. One of the initial lessons learned in 

the aftermath of the Gold King Mine release is that the EPA can improve its communications regarding releases and other environmental events that may affect 

multiple jurisdictions. The EPA believes it is important to focus on the steps that 

need to be taken to help prevent similar incidents from occurring at other mining 

sites. The EPA is reviewing the Department of the Interior Technical Evaluation of 

the Gold King Mine Incident report and is awaiting the review from the EPA’s 

Office of the Inspector General. These reports and assessments will help inform the 

EPA’s ongoing efforts to work safely and effectively at mine sites as we carry out 

our mission to protect human health and the environment. 

Question 2. The EPA is the Federal agency charged with setting the national 

standard for environmental stewardship. Shouldn’t EPA be held to a higher 

standard than the entities it regulates? 

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

public health, and we are dedicated to continuing to do our job to protect the environment and to hold ourselves to the same high standard we demand from others. 

Question 3. In a letter dated September 3, 2015, the state of Utah put EPA 

Region 8 Administrator, Shawn McGrath on notice of actions taken by state and 

local government agencies to protect the health, safety and welfare of citizens and 

14 

visitors, as well as the economic base of the affected local governments. The letter 

notes that not-with-standing EPA’s stated intent to reimburse response costs, expenses and damages, to date the state has received no response, or confirmation of 

EPA’s intention to reimburse the state, the process to obtain reimbursement or 

when payment may be received. Based on these circumstances: 

a. Does EPA in fact intend to reimburse the state for response costs, expenses 

and damages? 

b. What is the process for the state and local governments to submit claims to 

EPA? 

c. When may the state and local governments expect to receive payment? 

d. How will EPA fund the costs of reimbursement? 

Answer. Enclosed is the EPA Regional Administrator’s October 7, 2015, response 

to the state of Utah’s inquiry regarding the process for seeking reimbursement for 

state and local governments’ response costs, expenses and damages from the Gold 

King Mine release. This letter addresses the Joint Committee’s question about the 

process for submitting claims under the Federal Tort Claims Act and applying for 

cooperative agreements pursuant to the Comprehensive Environmental Response, 

Compensation & Liability Act (CERCLA) and the EPA’s implementing regulations 

at 40 C.F.R. Part 35, Subpart O. The region continues to work with the state on 

its request for reimbursement of response costs. 

Enclosure 

U.S. ENVIRONMENTAL PROTECTION AGENCY,

REGION 8, 

DENVER, COLORADO

October 7, 2015 

Alan Matheson 

Executive Director 

Utah Department of Environmental Quality 

P.O. Box 144810 

Salt Lake City, Utah 84114–4810 

Dear Mr. Matheson: 

Thank you for your letter of September 3, 2015, inquiring about the process for 

seeking reimbursement for state and local governments’ response costs, expenses 

and damages from the Gold King Mine Spill. 

Individuals, businesses or governmental entities that have a claim for money 

damages resulting from personal injury, property damage or economic loss caused 

by negligent or wrongful federal government actions may file a claim under the 

Federal Tort Claims Act (FTCA). Standard Form 95 is used to present claims 

against the United States under the FICA. Standard Form 95 is not required to 

present a claim under the FTCA, but it is a convenient format for supplying the 

information necessary to bring an FTCA claim. For information about how to file 

a claim, including access to Standard Form 95, please visit the EPA’s website at the 

following address: http://www2.epa.gov/goldkingmine/claims-process-and-standardform-95-damage-injury-or-death-result-gold-king-mine. 

As a general matter, claims must be presented to the EPA within two years after 

the claim accrues. A person may amend their claim form at any time prior to 

reaching a settlement with the EPA, or before the person files a lawsuit under the 

FTCA. Although EPA regulations state that the agency has six months to resolve 

a claim, we will make every effort to respond to Gold King Mine release claims as 

soon as possible. 

The EPA also can enter into cooperative agreements with states, tribes and political 

subdivisions to pay for certain costs related to response actions in connection with 

the Gold King Mine release under the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA) and EPA implementing regulations at 

40 C.F.R. Part 35, Subpart O. If the state of Utah wishes to apply for a cooperative 

agreement with the EPA, please call Cinna Vallejos at (303) 312–6376, or visit the 

EPA’s website at the following address: http://www.epa.gov/ogd/grants/ 

how_to_apply.htm. 

15 

The EPA continues to monitor conditions in the Animas and San Juan Rivers and 

is in the process of developing a monitoring strategy for the next year, with input 

from all the stakeholders, including the Utah Division of Water Quality. 

The EPA, in consultation with the Animas River Stakeholders Group (ARSG), has 

installed a bulkhead in the Red and Bonita mine. This bulkhead will control any 

sudden releases from within the Red and Bonita mine and can be closed in when 

the site team is ready to evaluate the results from the bulkhead closure. The EPA 

is working at the Gold King Mine to stabilize the adit entry and the first 75 feet 

of the adit this year, weather conditions permitting. Next year we will continue with 

work to open up the mine and evaluate water flows. 

As part of the Gold King Mine spill, the EPA has tasked our contractor to install 

a temporary treatment system at Gladstone to treat ongoing discharges from the 

Gold King Mine over the winter. While this treatment will dramatically improve the 

water quality of the Gold King Mine discharge, other mines in the area will continue to discharge water until more permanent solutions are developed. We are 

working with the state of Colorado and local leaders on such long-term remediation 

strategies in the Upper Cement Creek Basin. 

Again, we appreciate your inquiry. If the EPA may provide anything further, please 

contact me, or your staff may wish to contact David Ostrander, Gold King Mine 

Regional Incident Coordinator, at (303) 312–6827 or ostrander.david@epa.gov. 

Sincerely, 

SHAUN L. MCGRATH, 

Regional Administrator. 

Question 4. Does EPA assume responsibility for the damages caused by the action 

or inaction of its contractor—Environmental Restoration on August 5, 2015? 

a. Was Environmental Restoration following a work plan prepared by EPA at 

the time of the release? 

b. Was Environmental Restoration acting under the direction and control of 

EPA’s on-scene coordinator at the time of the incident? 

Answer. The EPA is committed to working closely with response agencies and 

state, local and tribal officials to respond to concerns and to evaluate impacts to 

public health and the environment. Individuals, businesses or governmental entities 

that believe they have suffered money damages resulting from personal injury, property damage or economic loss caused by negligent or wrongful U.S. Government actions may file a claim with the EPA under the Federal Tort Claims Act for injury 

or damage. To date, no determination has been made regarding claims submitted 

to the EPA. 

The EPA had an approved work plan for site activities and there was an EPA 

On-Scene Coordinator at the time of the incident. The EPA is reviewing the Department of the Interior’s report on the Gold King Mine incident and is awaiting a 

report from the EPA’s Office of the Inspector General. 

Question 5. Does EPA plan on taking any action against its contractors—Weston 

(Superfund Assessment and Response Team) and Environmental Restoration 

(Emergency and Rapid Response Services) to recover any reimbursement costs or 

damages it is required to pay? 

Answer. At this point, the EPA has not taken any action against its contractors. 

The EPA believes it is important to focus on the steps that need to be taken to help 

prevent similar incidents from occurring at other mining sites. The EPA is currently 

reviewing the Department of the Interior’s report of the Gold King Mine Incident 

and is awaiting a report from the EPA’s Office of the Inspector General. 

Question 6. Why did EPA delay in providing the state and other stakeholders 

notice of the release and why did it refuse to share water quality monitoring data 

in the days immediately following the release? 

a. Was EPA adequately prepared for an emergency given the conditions known 

at the time? 

b. Did the sampling and monitoring results immediately following the release 

disclose any ongoing threats to public health, safety or the environment? 

Answer. Consistent with EPA Region 8’s Regional Contingency Plan, notifications 

to local officials in Silverton and to the Colorado spill reporting line were done as 

quickly as possible through the state staff who were working in the area. The 

16 

Colorado Department of Public Health and Environment then proceeded to immediately notify downstream water users along the Animas River, on Wednesday, 

August 5, the day of the release. Local officials in Durango were notified the day 

of the incident and actions were taken to shut down water intakes and irrigation 

ditches. The plume reached Durango the evening of August 6. Further notifications 

were made to additional Colorado state officials, EPA Region 6, New Mexico 

Environmental Department, and additional local and tribal officials on August 5– 

8. 

The EPA began collecting water quality data in advance of the plume reaching 

downstream locations, and once the data was thoroughly reviewed and validated, it 

was released to the public and posted on the EPA’s Web site. Sampling following 

the release showed a spike in metal concentrations for 1 day and subsequently 

water quality returning to pre-incident conditions. The closure of water intakes, irrigation ditches and recreational use on the Animas River limited the potential for 

exposure to the metal concentration spike and addressed concern for public health 

or safety. Additionally, assessment of immediate impacts through studies done by 

Colorado Department of Public Health and Environment and Mountain Studies 

Institute showed no acute impacts to the aquatic biota. 

The EPA was working with the state of Colorado to take action at the Gold King 

Mine to address both the potential for a catastrophic release and the ongoing adverse water quality impacts caused by the significant mine discharges into the 

Upper Animas Watershed over many years. These efforts are continuing following 

the August 5, 2015, release to prevent future releases. 

The Site Health and Safety Plan at the Gold King Mine included emergency procedures that addressed worker safety, release response, evacuation routes and emergency notifications. A copy of the Health and Safety Plan can be found at: http:// 

www2.epa.gov/goldkingmine/gold-king-health-and-safety-plan. All indications at the 

site were that there was limited water backed up inside the mine prior to the 

release and that precautions had been taken to avoid an uncontrolled release. 

Question 7. What are EPA’s plans to address the continuing and long-term 

impacts of the discharges from the mines in the Animas watershed? 

a. What water treatment technologies and processes have been evaluated to 

address the discharges? 

b. What are the estimated costs of long-term treatment of the discharges from 

the Gold King Mine? 

c. To what level of water quality (drinking water standards) will the discharge 

be treated? 

d. How long will treatment be required? 

e. How will EPA fund those ongoing perpetual, long-term costs? 

Answer. The U.S. EPA, together with the Colorado Department of Public Health 

and Environment, is listening to and working with local, tribal, nongovernmental 

and other stakeholders regarding their concerns and evaluating options for longterm solutions to the impacts from mining in the Upper Animas Watershed. 

In the interim, the EPA has constructed a temporary water treatment plant to 

address the ongoing discharges from the Gold King Mine over the winter season. 

The EPA evaluated six proposals for the interim water treatment plant, all proposing a chemical neutralization process. The capital cost of interim water treatment plant selected is $1.78 million and annual operations costs are $1.0 million. 

The water quality discharge goals for the interim water treatment plant is to reduce 

total metals by greater than 85 percent. Since the treated water is not being used 

as a source of potable water, drinking water standards were not applied to the discharge of the water treatment plant. The treatment plant will be operated over the 

winter during the limited time that removal work is being conducted at the Gold 

King Mine. EPA’s Superfund Removal Program is providing the funding for the 

temporary water treatment. 

Question 8. Has EPA sampled the sediments in the Animas and San Juan Rivers 

following the Gold King Mine Release? 

a. Has EPA made a comparison between the contaminant (heavy metals and 

hazardous substances) concentrations in the sediments pre-release and postrelease? 

b. What conditions does the comparison disclose? 

Answer. The EPA has been conducting environmental studies of metal concentrations and other water quality parameters in the Upper Animas Watershed since 

2009. As part of those studies, the EPA collected sediment and surface water samVerDate Mar 15 2010 08:36 Jun 15, 2016 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\FULL COMMITTEE\09-17-15 JOINT\96242.TXT DARLEN
17 

1http://www2.epa.gov/goldkingmine/data-gold-king-mine-response#datasets. 

ples. In addition, after the Gold King Mine release, the EPA conducted sampling 

of sediment and surface water at the same sampling locations in Colorado to specifically evaluate impacts from the Gold King Mine release. In New Mexico, surface 

water and sediment sampling began on August 6, 2015, and August 10, 2015, 

respectively. In Utah, surface water and sediment sampling began on August 9, 

2015, and August 14, 2015, respectively. 

Because the EPA had data to characterize pre-release conditions in Colorado, we 

were able to compare metal concentrations in sediment pre-release and post-release. 

Concentrations of metals in river sediments typically vary from sample to sample, 

and this was observed in the San Juan River but no net increase in metals concentrations have been observed since the Gold King Mine release. The EPA’s test 

results subsequent to the Gold King Mine release show that metal concentration 

levels throughout the area as well as in New Mexico and Utah are below sediment/ 

soil recreational screening levels. 

By August 12, 2015, EPA’s test results were showing metal concentration levels 

throughout this area below surface water and sediment/soil recreational screening 

levels and returning to pre-event conditions. By September 2, 2015, sampling results 

were showing that levels were back to and maintaining pre-event levels.1 Based on 

previous monitoring, it has been shown that metal concentrations may fluctuate 

from time to time because of water surges due to heavy rains or other events that 

may change the water flow rates or volume. 

Question 9. Has EPA evaluated the impacts of the release in the sediments, 

macroinvertebrates, vegetation and aquatic life in the Animas and San Juan water 

systems? 

a. What did the evaluation disclose? 

b. Are there protected species of fish or other aquatic life in the Animas and 

San Juan Rivers? 

c. What are the anticipated long-term impacts on sediments, macroinvertebrates, 

vegetation and aquatic life based on the available sampling information? 

Answer. The EPA has evaluated macroinvertebrate impacts in the Animas and 

San Juan Rivers. In collaboration with the Mountain Studies Institute, benthic invertebrates have been evaluated in Colorado both pre-release and post-release. The 

state of Colorado has evaluated impacts to fish, and no fish kills have been reported 

in the rivers downstream from the release. 

The EPA has compared metals concentrations measured in the sediment sampling 

program in the Animas and San Juan Rivers with sediment screening concentrations used by the EPA to evaluate the potential for ecological impacts, and sediment 

concentrations in the rivers are consistently below those screening concentrations. 

These studies have indicated no additional impairment to benthic 

macroinvertebrates, microinvertebrates nor fish. 

The EPA understands there are no protected species of fish or other aquatic life 

in the Upper Animas River. The U.S. Fish and Wildlife Service lists the following 

fish species as present or potentially present in the San Juan River: Razorback 

sucker (endangered) and Colorado pikeminnow (endangered), Greenback cutthroat 

trout (threatened), and the Zuni bluehead sucker (endangered). 

The EPA has not found any immediate impacts to biota and data does not suggest 

that there will be any long-term impacts to the Animas or San Juan River sediments, benthic macroinvertebrates, vegetation or aquatic life due to the Gold King 

Mine release. The EPA will evaluate additional data produced under a long-term 

Conceptual Monitoring Plan currently in review. 

Question 10. Has EPA identified technologies and processes to treat sediments in 

the Animas and San Juan Rivers to eliminate any heavy metals and hazardous 

substance contamination? 

a. To what quality levels will the sediments be treated? 

b. How long will treatment be required? 

c. How will EPA fund those ongoing perpetual, long-term costs? 

Answer. Other than removal or capping, there are no known treatment technologies for treating sediment. However, because there have not been any risks 

identified to the Animas and San Juan Rivers due to the Gold King Mine release, 

no treatment technologies appear to be warranted at this time. The EPA will evaluate additional data produced under a long-term Conceptual Monitoring Plan. 

18 

2http://www.epa.gov/superfund/abandoned-mine-lands-site-information-1. 

Questions Submitted by Rep. Grace Napolitano 

Question 1. Estimates of the number of abandoned mines in the United States 

vary greatly—anywhere from 100,000 to 500,000. With the information that EPA 

currently has, can you provide me with the number and location of known abandoned mines in the United States (please break them down by: state, Federal land 

vs. private land, NPL list, Federal agency with jurisdiction). How many of these 

abandoned mines are foreign owned? Additionally, can you please quantify the 

amount of ongoing toxic releases that escape from these mines on a daily basis? 

Answer. Abandoned mine lands exist across private, Federal, state, and/or tribal 

lands. A number of Federal statutes address environmental contamination issues 

associated with abandoned mine lands, and Federal statutory authority is spread 

among several agencies with no one agency having overall statutory responsibility. 

Five Federal agencies including the Department of the Interior’s Bureau of Land 

Management, Office of Surface Mining Reclamation and Enforcement, and National 

Park Service; the Department of Agriculture’s Forest Service; and the 

Environmental Protection Agency may be authorized to fund the cleanup of some 

of these hardrock mine sites based upon jurisdiction, need, and state concurrence. 

Therefore, the EPA does not maintain a comprehensive list of the number, location 

or ownership status of abandoned mines in the United States. 

The EPA does not maintain information on the amount of ongoing toxic releases 

from mines. However, according to the U.S. General Accounting Office (Information 

on the Number of Hardrock Mines, Cost of Cleanup, and Value of Financial 

Assurances, GAO–11–834T, July 14, 2011), there are at least 161,000 abandoned 

hardrock mine sites in the 12 western states and Alaska, and at least 33,000 of 

these sites have degraded the environment by contaminating surface water and 

groundwater or leaving arsenic-contaminated tailings piles. There are 129 mining 

and mineral processing sites on the NPL and another 8 sites being addressed 

through Superfund Alternative Approach agreements. Although not a comprehensive list, additional information regarding other state inventories can be found at: 

http://www.abandonedmines.gov/mapdata.html. 

Question 2. My understanding is that the Environmental Protection Agency has 

limited statutory responsibility over abandoned mines, unless these mines pose an 

imminent and substantial endangerment to public health, or where assistance from 

EPA is requested by another Federal agency, a state, or other stakeholder. More 

specifically, as you noted in your testimony, EPA may participate in abandoned 

mine activities related to its authorities under the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA). 

• Please provide me with a detailed summary of the abandoned mine sites 

where EPA has used its CERCLA authority over the past 5 years, including 

information on the amount of Federal appropriations expended for such sites, 

whether the activities undertaken using these funds were related to removal 

or remedial activities (or some other CERCLA related authority), and a brief 

description of the activities undertaken. 

• In addition, I understand that EPA may also utilize the authorities under the 

Federal Water Pollution Control Act (Clean Water Act) related to abandoned 

mines, including both its authorities under sections 402 and 319. Please provide me with a detailed summary of the abandoned mine sites where EPA 

has used its Clean Water Act authority over the past 5 years, including a 

brief description of the activities undertaken. 

Answer. In general, EPA’s Superfund program addresses hardrock mining and 

mineral processing site cleanups by listing a site on the Superfund National 

Priorities List (NPL) or by performing removal actions when states have requested 

the EPA’s assistance to address imminent risks to human health or the environment. The Superfund program has also worked with other Federal agencies to address contamination at hardrock mining sites. To date, the EPA’s Superfund 

program has been involved in only a small fraction of the abandoned hardrock mine 

sites located throughout the country. 

There are currently 129 abandoned hardrock mining and mineral processing sites 

on the NPL and another 8 sites with Superfund Alternative Approach (SAA) agreements. Information available online for each site includes the state and the EPA 

region where the site is located, provides a current status update of the site, and 

links to additional information about the site.2

19 

If warranted, removal actions, which are short-term responses used to handle 

threats of releases which pose an imminent risk to public health or the environment, may be taken at any stage of the Superfund process to ensure public safety. 

The EPA took early removal actions to address imminent threats at approximately 

35 percent of hardrock mining or mineral processing NPL sites prior to their being 

added to the NPL. 

The EPA has spent close to $1.1 billion in Superfund removal and remedial response costs at the 137 proposed, final, and deleted non-Federal NPL and SAA 

mining sites during FY 2010–2014. Of the $1.1 billion, the EPA has spent nearly 

$585 million in congressionally appropriated funds and more than $470 million in 

funds obtained from potentially responsible parties through settlements (Special 

Accounts). These expenditures do not include any funds potentially responsible parties and Federal agencies have spent on their own to conduct response work. The 

most frequently selected remedies at mining sites to address acid mine drainage include: institutional controls, on-site and off-site disposal and engineering containment, and water treatment (lime/precipitation). 

The EPA is not aware of any Clean Water Act Section 402 (NPDES) permit issued 

for abandoned mines in the last 5 years. In utilizing Clean Water Act Section 319 

funding, states identify priority waters and nonpoint-source pollution problems, and 

identify and fund activities to address these problems. From 2009–2014, of the 

Section 319 projects funded by the EPA, just over $61.7 million were invested to 

fund 105 projects that targeted pollution related to abandoned mine drainage, mine 

tailings, open pit mining, and surface/subsurface mining across 10 states (AK, AZ, 

CA, CO, MD, MI, MT, OH, PA, WV). Of these funds, approximately 60 percent have 

gone to watershed-based projects, implementing best management practices within 

the target watersheds; the remaining 40 percent provided funding for activities such 

as watershed planning, water quality monitoring, planning and staff support. 

Question 3. My understanding is that a potential remedial action related to abandoned mines is to permanently seal any potential openings to the mine shaft, to 

allow the mine to fill with water (and remove all of the air that is causing the chemical reactions that lead to acid mine drainage), and to control and treat any potential seepage from the mine. Some have suggested that this potential remedy only 

increases the likelihood of a future release, should the water in the sealed mine 

cross over into another mine or escape through a previously unknown weak point 

in the structure. How does EPA ensure that proposed remedial actions related to 

abandoned mines improve the overall protection of human health and the environment, and not increase the likelihood of future uncontrolled releases, such as those 

that occurred at the Gold King Mine? 

Answer. Mine tunnels or adits have been sealed or plugged using bulkheads by 

mining companies as well as state, Federal, and other regulators at hardrock and 

coal mine sites across the United States and the world. The objective of installing 

engineered bulkheads in mine adits is to stop or reduce the flow of acid mine drainage from the mine and thereby reduce the costs of water treatment that is often 

necessary prior to discharging the mine-contaminated water to the environment. A 

well-engineered bulkhead is typically designed to handle any mine water pressure 

that would likely build up in the mine behind the plug. Proper characterization of 

the mine workings hydrology, hydrogeology, and structural stability is needed prior 

to designing and constructing these plugs. 

It is important to note that the Gold King Mine level 7 was primarily plugged 

by a cave-in within the mine tunnel and a temporary soil fill was used to secure 

the adit over the winter. There was not a concrete, engineered bulkhead installed 

at the Gold King Mine Level 7 adit. In order to be effective and avoid unintended 

consequences, bulkheads have to be designed and constructed to withstand hydraulic head or pressure buildup which may impact other parts of the mine workings. 

If not properly characterized or designed, permanent bulkheads may potentially 

lead to pressure buildup and a water release from other parts of the mine. Flow 

through bulkheads, which have piping and valves constructed within them, can be 

designed to monitor water buildup and pressure and/or relieve the water and pressure buildup and reduce the potential of water being released from other parts of 

the mine. 

Question 4. The water and sediments stirred up by the Gold King Mine spill 

carried downstream through the Animas River, surged into the San Juan River and 

eventually made it to Lake Powell. The chemical constituency of the release is now 

distributed throughout the Animas, San Juan and the San Juan Arm of Lake 

Powell. These sediments and consolidated chemicals will be resuspended into the 

water column during future high flow runoff or storm events. While the initial impact may have dissipated, we know that the long-term effects will continue. What 

20 

support does EPA intend to provide to the states of Colorado, New Mexico and 

Arizona to continue to monitor and evaluate this resuspension of chemicals into the 

water columns. 

Answer. The EPA will implement a Conceptual Monitoring Plan that will sample 

and assess conditions across the entire watershed, including Cement Creek near the 

Gold King Mine over at least the next year, to help determine whether there are 

any longer term impacts associated with the Gold King Mine release. The 

Conceptual Monitoring Plan was distributed for review and comment by state, tribal, and local interests, and the EPA currently is evaluating comments received. The 

EPA expects to provide technical and financial resources in implementing the 

Conceptual Monitoring Plan to the affected states and tribes using CERCLA response and Clean Water Act authorities. 

The EPA, together with the Colorado Department of Public Health and 

Environment, is listening to and working with local, tribal, nongovernmental and 

other stakeholders regarding their concerns and evaluating options for long-term 

solutions to the impacts from mining in the Upper Animas Watershed. 

Question 5. The tribes have a special relationship with the Animas and San Juan 

Rivers. They withdraw water that does not have to go through traditional water 

treatment before it is used to irrigate crops, water stock or be used directly by the 

tribal people. What specific actions will the EPA take to ensure that the tribes are 

funded, supported, and worked with as required—in a nation-to-nation relationship 

to track the impacts of this spill over the years it will take to move the sediment 

downstream? 

Answer. The EPA recognizes that tribes have important and traditional uses of 

their waters. The EPA proposed a Conceptual Monitoring Plan to assess the impacts 

of the release and to assess the condition of the watershed and these rivers. That 

plan was provided to the tribes for their review and comment. We have recently 

received and are reviewing their input. The EPA is exploring options on how to support the tribes in the assessment of these rivers. The EPA will continue to work 

with the tribes through our nation-to-nation relationship, and in accordance with 

the EPA’s tribal policies. We will continue to apply that approach to our work with 

the tribes through the Conceptual Monitoring Plan and beyond. 

Question 6. Have samples been pulled and analyzed at the source of the spill for 

baseline conditions. Are they continuing to be sampled? Does the EPA have longterm concerns with the effects on health, livestock and the watershed from exposure 

to the metals in the river water? Do the Centers for Disease Control and Prevention 

or National Institutes of Health play a role in analyzing the short- and long-term 

effects? 

Answer. Yes. The EPA has conducted sampling near the Gold King Mine entrance 

periodically since 2009. Since the August 5 release, the EPA has collected samples 

from the mine discharge and sediments in the mine. We have also analyzed samples 

in Cement Creek both upstream and downstream from the treatment ponds. 

The EPA will implement a Conceptual Monitoring Plan that will sample and assess conditions across the entire watershed, including Cement Creek near the Gold 

King Mine over the next year, to help determine whether there are any longer term 

impacts associated with the Gold King Mine release. 

Sampling of surface water and sediment to date have indicated no additional impairment to the Animas River and San Juan River associated with the Gold King 

Mine release. Water and sediment concentrations in the Animas and San Juan 

Rivers vary day-to-day, and, even prior to the spill, water and sediment concentrations occasionally exceeded screening levels for health, livestock, agriculture, river 

biota, etc. Those screening levels are for long-term conditions and the occasional 

exceedances observed are not high enough or sustained enough to threaten public 

health or other resources. It is important to note that this region of the Upper 

Animas River has been impaired by metals concentrations due to extensive historical mining activities for more than 100 years. 

The EPA works closely with the Agency for Toxic Substance and Disease Registry 

(ATSDR), which is part of the Centers for Disease Control and Prevention, in the 

evaluation of public health impacts due to environmental contamination. ATSDR 

participated in the Area Command for the Gold King Mine and provided advice and 

information to local officials. 

21 

Questions Submitted by Rep. Dan Newhouse 

Question 1. Who was EPA’s ‘‘On-Scene Coordinator’’ at the Gold King Mine on 

August 5 when the spill was triggered and what was the role of that official on site? 

Answer. The EPA On-Scene Coordinator (OSC), as stated in the National Oil and 

Hazardous Substances Pollution Contingency Plan (the NCP), directs response efforts and coordinates all other efforts at the scene of a release. The section of the 

NCP on response operations (40 CFR 300.135) details the duties of the OSC. 

Because of threats or harassment related to the Gold King Mine release on August 

5, the EPA has not released the names of employees on-site at the time of the 

release. 

Question 2. Why didn’t the EPA test the hydrostatic pressure within the mine before working, even though it was well-known that contaminated mine water was 

gathering in the mine’s tunnels? 

Answer. EPA’s Gold King Mine Internal Review Team found that site conditions 

made it difficult to use a drill rig to bore into the GKM from above and determine 

the level of the mine pool and pressure within the mine. The Review Team identified technical challenges, safety, timing, and cost as factors in considering this technique—and also identified the steepness and instability of slopes at the site as a 

key safety consideration. 

Question 3. Ensuring water quality while handling waste in closed mines clearly 

requires expertise in mine management. Why does your agency continue to insert 

itself into mine remediation without employing a single mine engineer across the 

entire agency? 

Answer. Throughout the EPA’s three decades of cleaning up waste sites through 

the Superfund response program, the EPA has used an interdisciplinary approach 

to clean up sites that includes employing scientists and engineers, including those 

with mine-related degrees and experience in project manager positions, including 

our On-Scene Coordinators. Many of these employees have experience in the natural 

resource and mining industries that they bring with them to the EPA. 

Additionally, EPA contractors include staff with science and engineering backgrounds, and Region 8 consults with state partners at the Colorado Department of 

Public Health and the Environment and Division of Reclamation, Mining and Safety 

who have many years of experience in mine site remediation. In conducting mining 

type operations, the EPA uses private companies with mining engineers to conduct 

mine remediation work. 

Questions Submitted by Rep. Mark Walker 

Question 1. Do you understand why the Animas spill has exacerbated concerns 

that the Environmental Protection Agency (‘‘EPA’’) is not qualified to manage our 

Nation’s waterways through the Agency’s new overarching Waters of the United 

States (‘‘WOTUS’’) regulation? 

Answer. There is no relationship between the Animas River spill and the EPA/ 

Department of the Army Clean Water Rule. The EPA has worked successfully to 

address environmental concerns at hundreds of abandoned mine sites across the 

West. We are thoroughly investigating the Animas River incident and working 

closely with our Federal, state, and local partners to remediate the effects of the 

spill. 

The EPA and the Army developed the Clean Water Rule at the request of a broad 

range of interests, including Members of Congress, agriculture and forestry organizations, states and local governments, development groups, and many others to respond to confusion and uncertainty resulting from various decisions of the Supreme 

Court. The agencies will continue to work under the Clean Water Act to protect 

public health, clean water, and a healthy economy. 

Question 2. Most of the waters that the EPA is seeking new jurisdiction over 

through this new mandate have traditionally been managed by states, correct? 

Answer. The majority of states implementing Clean Water Act programs define 

their scope of waters jurisdiction to be no greater than that established by the EPA 

under the Clean Water Act. As a result, states have not traditionally protected 

waters under state programs more broadly than Federal law defines. 

Question 3. There is a video on the EPA Web site that was released when you 

all announced the final WOTUS rule that says ‘‘until now 60 percent over our 

22 

streams and millions of acres of wetlands all across the country were not protected.’’ 

Is that statement inaccurate? 

Answer. The EPA has consistently stated that CWA protections are unclear for 

60 percent of the Nation’s streams and millions of acres of wetlands as a result of 

Supreme Court decisions in SWANCC and Rapanos. These decisions resulted in confusion about the scope of waters covered by the statute. The goal of the Clean Water 

Rule is to reduce this confusion and clearly define, in simple and direct terms, which 

waters are and which are not covered by the Act. This clarity will protect human 

health and the environment, while reducing the costs and delays associated with 

resource-intensive case-specific jurisdictional determinations. 

Question 4. What day did you first read the memos written by Major General 

Peabody to Assistant Secretary Darcy that were written on April 27 and May 15 

and expressed serious legal and scientific deficiencies with the final WOTUS rule? 

Answer. The Peabody memos and their attachments are deliberative documents 

internal to the Department of the Army and the Army Corps of Engineers and were 

only shared with the EPA at the time they were transmitted to Congress after the 

final Clean Water Rule was published in the Federal Register. 

Question 5. Members of the U.S. House Committee on Oversight and Government 

Reform (‘‘OGR’’) sent these memos to you personally immediately following the July 

29 hearing, at which you testified, along with numerous questions in a letter that 

your agency still has not responded to date. Assistant Secretary Darcy testified on 

June 10 about those memos and that she had seen them. Do you expect members 

of these committees to believe that you still have not read these memos 49 days 

after the agency head, with whom you claimed to be closely working, testified about 

knowing the intimate details of those memos? 

Answer. The Peabody memos are deliberative documents internal to the 

Department of the Army and the Army Corps of Engineers and were not shared 

with the EPA during the development of the Rule, only after the Rule was final. 

However, the issues raised in the memos were not new and had been thoroughly 

discussed between the EPA and the Department of the Army during the Rule’s 

development. The Corps provided helpful input, and the agencies carefully considered suggestions made by Corps staff. 

It is important to emphasize that the concerns raised in the Peabody memos focus 

on Corps recommendations to broaden the scope of the Clean Water Rule beyond 

that submitted for final OMB review. Ultimately, the agencies set clear distancebased limitations that reduce the extent of jurisdiction in order to provide the 

clarity and predictability that will assist all interested parties. 

Question 6. At the July 29 OGR hearing, when you were asked if you were aware 

of the legal and scientific deficiencies raised by the U.S. Army Corps of Engineers 

in those memos, you replied, ‘‘Just from what I’ve read, I have not seen the memo 

myself.’’ Later in that exchange, you stated, ‘‘In moving forward with the final, I 

individually had conversations with [Assistant Secretary of the Army Darcy] about 

the changes that the Army Corps was interested in making, and as the proposal 

moved through the interagency process I understood that everything had been fully 

satisfied.’’ Were you briefed or did you ask anyone to send you the memos after 

reading the news stories about them? If not, why didn’t you want to read the memos 

prior to the July 29 hearing? Were you advised not to so that you did not have to 

testify about the allegations in the memos of serious flaws and scientific deficiencies 

with your new regulation? 

Answer. The Peabody memos are deliberative documents internal to the 

Department of the Army and the Army Corps of Engineers prepared after the Clean 

Water Rule was submitted for final OMB review. They are not part of the agencies’ 

administrative record for the Clean Water Rule. The EPA worked closely with the 

Corps and the Army throughout the rulemaking process to respond to issues raised 

at every level of the Corps and the EPA. The process involved years of coordination 

and discussions to assess, evaluate, and reach conclusions regarding every aspect 

of the rulemaking. The final rule represents our best mutual efforts to clarify the 

scope of Clean Water Act jurisdiction consistent with science and the law. 

Chairman CHAFFETZ. Thank you. I now recognize the gentleman 

from Utah, the Chairman of the Natural Resources Committee, Mr. 

Bishop, for his questions. 

23 

The CHAIRMAN. Thank you, Ms. McCarthy, for being here. As 

usual, I am still disappointed that you are alone on that panel, but 

thank you for being here. 

Ms. McCarthy, are you aware that Federal agencies are required 

under the Endangered Species Act to review any discretionary action they plan to undertake, to see if it may affect endangered species or the critical habitat? And that, if the Agency determines that 

endangered species or the critical habitat may be affected, they 

must consult with the Fish and Wildlife Service? 

Ms. MCCARTHY. I am aware. 

The CHAIRMAN. Did EPA consult with Fish and Wildlife on its 

activity on the Gold King Mine prior to the August 5 disaster? 

Ms. MCCARTHY. EPA had no reason to consult with them, because we did not plan to take action that would have discharged 

that amount of material into the creek. 

The CHAIRMAN. So, you assert that you did not anticipate the release; at least that is the email. You two agencies were not talking 

before, so I am glad we finally forced you to actually have some 

communication last night before you sent this through. But your 

assertion is you did not anticipate the release that would affect 

downstream endangered species, so, therefore, you did not consult 

with Fish and Wildlife. 

Ms. MCCARTHY. We were actually there, Mr. Chairman, because 

of the threat of that release, in attempting to mitigate that—— 

The CHAIRMAN. You did not contact them because you assert you 

did not anticipate that. Now, is that what you and your staff are 

saying—— 

Ms. MCCARTHY. We were there to prevent that type of release. 

That is exactly right. 

The CHAIRMAN. I am sorry, I did not quite hear what you said. 

Ms. MCCARTHY. We were there to actually prevent a release, because that is the reason why we were working with the state of 

Colorado and others at the site—— 

The CHAIRMAN. That is—— 

Ms. MCCARTHY [continuing]. Was to try to depressurize—— 

The CHAIRMAN. I understand. 

Ms. MCCARTHY [continuing]. If that was—— 

The CHAIRMAN. That is cool. I appreciate that, but the fact is you 

did not talk to Fish and Wildlife, even though that is the law, 

that—— 

Ms. MCCARTHY. Only if we are taking action—— 

The CHAIRMAN [continuing]. You are supposed to—— 

Ms. MCCARTHY [continuing]. As you indicated, sir, that—— 

The CHAIRMAN. No, I am sorry. Ms. McCarthy, listen to this. The 

final Health and Safety Plan, Emergency and Rapid Responses 

Services for the Gold King Site, prepared by Environmental 

Restoration—that is your contractor—for EPA Region 8, dated 

September 4, 2014, contains a section entitled, ‘‘Spills, Leaks, or 

Releases.’’ It states, ‘‘Locate the source and stop the flow, if it can 

be done safely.’’ The Task Order Statement of Work for EPA 

Region 8 prepared by Environmental Restoration—this is dated 

July 25, 2014—states that ‘‘conditions may exist that could result 

in a blowout of the blockages, and cause a release of a large volume 

24 

of contaminated mine water and sediment from inside the mine 

which contains concentrated heavy metals.’’ 

Clearly, these documents demonstrate that, in fact, you did not 

only anticipate the possibility of a release, but also of a major blowout; yet, EPA conducted no consultations with Fish and Wildlife, as 

is required under the Endangered Species Act. 

Now, are you aware that these activities are both criminal and 

civil penalties for knowingly violating the Endangered Species Act? 

Ms. MCCARTHY. Sir, I am really not trying to argue with you; I 

am trying to explain that the statement you are reading indicates 

that we were worried about those conditions existing. We clearly 

stated that to the contractor, so that there would be no actions 

taken that would have caused that release. Instead, we were there 

to prevent that release. 

The CHAIRMAN. That is wonderful. But, ma’am—— 

Ms. MCCARTHY. That is—— 

The CHAIRMAN [continuing]. The fact is, you were anticipating 

this type of thing happening. The law, that you insist everyone else 

obey, says you have to contact Fish and Wildlife and consult with 

them. The fact is you did not do it, and you had over a year to accomplish that fact. 

Ms. MCCARTHY. Sir, if I was there to take action to release this 

material, we would not be standing here today. We were taking action in an attempt to prevent that release, knowing that it was a 

considerable risk to leave it as it was. 

The CHAIRMAN. That is sweet. I appreciate that, and I know you 

feel terrible about it. But, the bottom line is, your documents say 

you anticipated a potential major blowout; and the law says if you 

anticipate a major blowout, you have to contact Fish and Wildlife. 

And, until last night, you did not contact Fish and Wildlife. Your 

agency did not do it. That is what the law requires; and there are 

criminal and civil penalties for violating that law, which you 

violated. 

Now, I do not really care what your goal was. It may be noble. 

It does not make a difference. You violated the law. A standard you 

make everyone else live by, you violated, and you are doing it with 

impunity. 

Are you aware that in the San Juan River starting in 

Farmington, New Mexico, there is a designated critical habitat for 

endangered fish that would be a violation of the ESA for an agency 

to cause adverse modifications of the habitat by spilling millions of 

gallons of this water and these heavy metals? Do you realize that 

area does exist? 

Ms. MCCARTHY. I was not aware until you just said it, sir, no. 

The CHAIRMAN. So, have you or your agency discussed EPA’s failure to consult with the Fish and Wildlife Service prior to this hearing, or any request prior to this hearing? 

Ms. MCCARTHY. We do not believe that we actually constituted 

a failure to notify concerning endangered species, because the actions we were taking were intended to stop a blowout. Clearly, 

there was a problem at the site. That is what we are looking at 

now to identify—— 

25 

The CHAIRMAN. All right, I appreciate your making your own 

interpretation of the law; but that is not what the law requires, 

and that is not what the law says. 

Ms. MCCARTHY. OK, sir. 

The CHAIRMAN. You violated the law, period. 

Now, the communications you said you made—oh, I am sorry, I 

am over. I apologize for that. I will get another shot at this. I yield 

back. 

Chairman CHAFFETZ. I thank the gentleman. I recognize the 

gentleman from Arizona, Mr. Grijalva, for 5 minutes. 

Mr. GRIJALVA. Thank you very much, Mr. Chairman. 

Ms. Administrator, getting back to the subject of the hearing, 

which is the Gold King Mine, the role EPA had, and the role EPA 

has at this point. The question is, if EPA and the state had not 

been at the Gold King Mine at all, what would have eventually 

happened to the water that was released on August 5? 

Ms. MCCARTHY. Well, I think as you know, sir, our reason for 

being there was the degraded water quality, a result of 300-plus 

million gallons that were going into the creek and the Animas 

River over time. It was anticipated that there was a serious potential for a blowout. We were there, working with Colorado and the 

Animas River Stakeholder Group, to address the work plan and opportunity to try to mitigate that, and basically to resolve an issue 

that was of significant concern to those communities. 

Mr. GRIJALVA. The affected Native nations’ issue, that they have 

legitimately raised, is the issue of notification—rapid and on-time 

notification as to what was occurring and the effect that it could 

have on tribal lands and their people, and your response to the lack 

of rapid and necessary notification to that by the Agency. 

Ms. MCCARTHY. The Agency did institute its notification procedure the same day, that was able to effectively get to the state of 

Colorado that day and ensure that, before the plume arrived at any 

intake for drinking water or for irrigation, that there was an ability 

to mitigate that, and make sure that the spill was contained. So 

that was good. 

The following day, we completed the notifications to the downstream folks. So, we are talking about a spill on August 5, and we 

completed the notifications on August 6. 

Now, is that rapid? I would argue that we should have done better. I would argue that it would have been much better and more 

appropriate to reach everybody the same day. Are we trying to do 

better? Yes. We have issued a notification to all of our regions to 

go back and take a look at what our notification process is, how to 

improve it, how to test it frequently to make sure that it is done. 

I think we could have done a lot better at this. But, the good 

news is that we were able to beat the plumes all the way down, 

so that we were able to protect those drinking water supplies and 

those irrigation channels as best we could. 

Mr. GRIJALVA. Madam Administrator, the Hardrock Mining 

Reform and Reclamation Act has within it a provision that would 

create a fund for cleaning up of the hundreds of thousands of abandoned hardrock mine sites in the country. This provision has been 

endorsed by the Administration by being included in the 

President’s budget. The funds necessary, how does it help with 

26 

addressing the problem not only that we are dealing with here 

today, but the potential that exists, particularly in the West and 

across this country? 

Ms. MCCARTHY. I think it would help significantly. Certainly, we 

are very supportive of the President’s initiative in the Fiscal Year 

2016 budget, and we think that it is incredibly important to have 

resources associated with this. We are talking about legacy mines, 

where we will have almost no ability to go after—— 

Mr. GRIJALVA. Anybody. 

Ms. MCCARTHY [continuing]. The principals involved in this. We 

know that, just in Colorado alone, we have 23,000 of those. In the 

Animas, the Upper Animas, it is 400 mines. That is why we were 

there, because there was no ability over the past 20, 30, 40 years 

to really effectively address this, even though the state worked 

hard at it, and EPA tried to help, as well. 

This is a significant problem in the West and Alaska, where we 

estimate there are at least 161,000 of these mines left, where they 

continue, in many cases, to degrade water quality. 

Mr. GRIJALVA. Administrator, there is certainly an implication by 

the Majority—well, it is not really an implication, it is a direct 

statement—that if a private company had done this, EPA’s response to this incident would have been much stronger and much 

more severe. Did EPA treat itself any differently here than it 

would have treated a private company in the same position? That 

is the question. 

Ms. MCCARTHY. No, sir. We would have required any company 

that was doing a response action, where they were out doing an 

emergency response action, to keep their folks safe if a spill occurred, and then to clean it downstream, to take responsibility, and 

to make sure that, over time, long-term consequences are addressed and mitigated. That is exactly what EPA is doing here. We 

have taken full responsibility for our actions. 

Mr. GRIJALVA. Thank you. I yield back. 

Chairman CHAFFETZ. I recognize myself for 5 minutes. 

If you had to give yourself a letter grade on your response, what 

would you give yourself so far? 

Ms. MCCARTHY. Sir, I am not giving myself a letter grade, I am 

doing the best I can to look at this incident and what caused—— 

Chairman CHAFFETZ. You said in your opening statement, ‘‘The 

EPA has closely coordinated with our Federal partners and with officials in Colorado, New Mexico, Utah, Southern Ute and Ute 

Mountain tribes, and the Navajo Nation, to keep them apprised of 

water and sediment sampling results, which are routinely posted 

on our Web site.’’ I have to tell you I am highly offended by those 

comments. 

Sitting behind you on the front row is the President of the 

Navajo Nation. I want to read some things from his testimony. 

These are his words, not my words, ‘‘To begin with, the U.S. 

Environmental Protection Agency inexplicably delayed notification 

of the spill to the Navajo Nation. The spill occurred on the morning 

of August 5, but the Nation was not informed of the release until 

August 6, a full day later, and not even by the Environmental 

Protection Agency, but by the state of New Mexico. It took the EPA 

almost 2 full days to notify us. We view this as a violation of the 

27 

government-to-government relationship between the Federal 

Government and the Navajo Nation.’’ How do you answer that? 

Ms. MCCARTHY. Well, sir, I am working closely with the 

President. I have great respect for him, and—— 

Chairman CHAFFETZ. No, you are not. No, you are not. You took 

2 days before you called them. 

Ms. MCCARTHY. Let me just answer. The call from New Mexico 

was the way in which we actually do these notifications. We work 

with states. That is not inappropriate. 

Chairman CHAFFETZ. To put in your statement that you are 

working closely with the Navajo Nation is totally misleading. 

Ms. MCCARTHY. Sir—— 

Chairman CHAFFETZ. Let me—I have to keep going. 

The Environmental Protection Agency also demonstrated complete lack of transparency. He goes on to say, ‘‘The media was receiving faster and fuller information from the EPA than the Navajo 

Nation. For example, the New York Times reported the spill hours 

before EPA provided the Nation with notice of the spill. And media 

sources reported that EPA confirmed the presence of arsenic on 

August 7, whereas the Environmental Protection Agency still had 

not reported the presence of arsenic to the Nation, even by Sunday, 

August 9.’’ What is your excuse for that? 

Ms. MCCARTHY. Sir, I indicated that our notifications could have 

been better. But the Navajo were given—— 

Chairman CHAFFETZ. No, you did not. 

Ms. MCCARTHY [continuing]. Notice the day after—— 

Chairman CHAFFETZ. In your testimony you said you are working 

closely with them. 

Ms. MCCARTHY. We are working—— 

Chairman CHAFFETZ. You did not say you screwed up on the 

communication. 

Ms. MCCARTHY. I did not—— 

Chairman CHAFFETZ. Why would it take 2 days? 

Ms. MCCARTHY. I did not say that either, sir. I said that we did 

take a day. I regret that. I wish it had been earlier. But the plume 

actually did not—— 

Chairman CHAFFETZ. You took 2 days. 

Ms. MCCARTHY [continuing]. Reach the Navajo until August 8. 

So, we had time to work with them, and we have been working 

hard to coordinate with them ever since. 

Chairman CHAFFETZ. Your first call was to the media, not to the 

Navajo Nation; and I have a problem with that. 

Ms. MCCARTHY. I did not make any calls, sir, to the—— 

Chairman CHAFFETZ. That is the problem. That is the problem. 

You did not make a call. You have the President of the Navajo 

Nation and you, personally, do not get involved in this. 

Ms. MCCARTHY. I did, sir. 

Chairman CHAFFETZ. It is one of the worst spills we have ever 

had. 

Ms. MCCARTHY. I did, sir, get involved. Could it have been 

earlier? 

Chairman CHAFFETZ. When did you call the President of the 

Navajo Nation? 

28 

Ms. MCCARTHY. I believe that I went to the site. August 11 and 

August 12 is when I was there. 

Chairman CHAFFETZ. Well, let’s go to the site visit, because the 

President of the Navajo Nation wanted to visit the site and you denied him. You would not take him to that site. We quote—this is 

from the Navajo President—‘‘We requested a tour from the 

Environmental Protection Agency, but faced immediate resistance. 

Staff indicated they would only take us to the confluence of the 

Cement Creek and the Animas River.’’ He goes on and on. 

You did not allow them—the EPA would not allow them to go to 

the site. Why not? 

Ms. MCCARTHY. As far as my understanding—and I was not at 

the site of the mine—is that it was a dangerous location, and we 

brought them as close as they could. They actually seemed, at that 

point in time, to be very satisfied that they were being protected 

in getting an opportunity to be at the site—— 

Chairman CHAFFETZ. So you were doing it to protect them? 

Ms. MCCARTHY. Many times that is—you, yourself, saw the site 

in the video. There was damage that occurred. We are keeping people safe, but there is no way in which we have kept people from 

going as close to the site as they could safely get—and the Navajo, 

in fact, went there. 

Chairman CHAFFETZ. They did not get there, and that is the testimony: ‘‘We finally convinced them to take us within a half-mile 

of the point of release. We walked the rest of the way to the point 

of the release. There we saw a completely unblocked mine adit with 

an estimated 550-gallon-per-minute flow of bright opaque orange,’’ 

and he goes on and on. 

You did not do that. You did not call them, you did not communicate with them. You told the media before you told them. They 

wanted to go to the site, you would not do that. Then you have the 

gall to hand out Standard Form 95 and walk along the river and 

try to get them to do waiver forms; and you only did that after the 

President said, ‘‘We are going to sue the EPA.’’ 

Ms. MCCARTHY. Sir—— 

Chairman CHAFFETZ. Why did you do that? 

Ms. MCCARTHY. Sir, it is my understanding that we did not hand 

out claim forms. We had a long discussion following that concern, 

and we are now getting claims—— 

Chairman CHAFFETZ. You are not telling the truth. Here is the 

quote—— 

Ms. MCCARTHY. Sorry, but that is my understanding. 

Chairman CHAFFETZ [continuing]. From the President of the 

Navajo Nation, ‘‘It was quick to dispatch staff to the Navajo communities to hand out Standard Form 95 and encourage members 

of the Navajo Nation to fill out forms to expedite settlement of 

their claims under the Federal Tort Claims Act, and apparently to 

obtain release from members of the Navajo Nation. But this was 

only after I’’—again, from the President—‘‘announced that the 

Navajo Nation would be suing the EPA.’’ 

Ms. MCCARTHY. The—— 

Chairman CHAFFETZ. Do you deny that your people were handing 

out this form? 

29 

Ms. MCCARTHY. I do deny that we were going around, trying to 

get anybody to sign these forms. Based on the information I had, 

that is not correct. 

Did we supply forms to the Navajo, the Navajo Nation leadership? Absolutely, because it is part of an opportunity for individual 

claims to be made. It is not a settlement or a release form. 

But we walk through those issues, and I think there is a much 

better understanding of the process for claims that the Federal 

Government has established. I am hoping that we can utilize our 

ability to work with them to recognize the damage that has been 

done, to fully account for that damage, and to compensate for it. 

That is part of the process. 

Chairman CHAFFETZ. Standard Form 95—I encourage the media 

and everybody to look at it. It states, ‘‘I certify that the amount of 

claim covers only damages and injuries caused by the incident 

above and agree to accept said amount in full satisfaction and final 

settlement of this claim.’’ It is a settlement agreement. 

Ms. MCCARTHY. No, it is—— 

Chairman CHAFFETZ. The record will reflect that, again, you are 

totally misleading, totally out of touch, and totally inappropriate in 

this instance. 

Ms. MCCARTHY. That—— 

Chairman CHAFFETZ. My time has expired. I will now recognize 

the gentleman from Pennsylvania, Mr. Cartwright. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. I would like to give 

the Administrator a moment to answer your last statement. 

Ms. MCCARTHY. The section you just read refers to a final settlement. This is an application to begin a settlement process that can 

be added to and amended throughout the entire process. 

The final settlement requires a settlement. The claimant needs 

to actually sign off. It was an ability to get started, it was not a 

final document in any way. 

Mr. CARTWRIGHT. Well, thank you for that, Administrator 

McCarthy. 

I would like to switch gears for a moment and focus on the extent of the problem of acid mine drainage around the country. It 

is a problem that my constituents in northeastern Pennsylvania 

know only too well. There are 65 million gallons of acid mine runoff 

every day. Here we are talking about a 3 million gallon spill. There 

are 65 million gallons of acid mine runoff every day flowing into 

the Lackawanna River, compared to that 3 million in the Animas 

River spill. 

In case you don’t believe it, I am going to show you pictures of 

the Lackawanna River on a typical day. This is the Old Forge 

Borehole. It emits 65 million gallons of orange acid mine drainage 

into the Susquehanna River, which finds its way down to the 

Chesapeake Bay. 

Any spill in our rivers is important and needs to be addressed. 

Here, however, what my local paper published, after the Animas 

spill received so much media and congressional attention, was this 

cartoon by my friend, the political cartoonist John Cole, from 

Scranton. On the left side it says, ‘‘Three million gallons of toxic 

mine waste accidentally dumped into Colorado’s Animas River. It’s 

being called an ‘environmental disaster’.’’ Then, over on the right 

30 

side, it shows an illustration of the Old Forge Borehole with 

65 million gallons a day of acid mine runoff, and it says, ‘‘Around 

here we’d call it ‘Tuesday afternoon’.’’ 

[Slide.] 

We understand the problem in northeastern Pennsylvania. The 

director of the Lackawanna River Corridor Association, my friend, 

Bernie McGurl, explained to me that in northeastern Pennsylvania, 

‘‘Schuylkill, Lackawanna, Luzerne, Dauphin, Northumberland, 

Columbia, and Carbon Counties all have profound mine drainage 

issues, with thousands of miles of streams that are impacted by 

mine drainage, many of which are totally devoid of aquatic life.’’ 

Now, nationally, there are over 500,000 abandoned mines. These 

abandoned mines scar our Nation and pollute our waterways. My 

understanding is that, in 2008, EPA estimated that to clean them 

up would cost $50 billion. 

Now, I welcome this newfound interest in water quality in a bipartisan way. But given that enormous sum—$50 billion— 

Administrator McCarthy, how much do mining companies contribute to cleaning up this mess that they create? 

Ms. MCCARTHY. Well, in the hardrock mining industry, it is very 

difficult for me to honestly estimate that. But on these legacy sites, 

the contribution is close to zero. 

Mr. CARTWRIGHT. How much are hardrock mining companies 

charged in royalties for what they extract? 

Ms. MCCARTHY. They are not charged any, that I am aware of. 

Mr. CARTWRIGHT. They are not charged. 

Ms. MCCARTHY. No, sir. 

Mr. CARTWRIGHT. Now that we have established that mining 

companies are not contributing to cleaning up their own messes, 

what are the sources of funding that you have for mine cleanup? 

Ms. MCCARTHY. The Federal agencies have some resources. They 

are not as significant as the challenges that we are facing. For 

EPA, we have an emergency response fund that we utilize, but that 

is for the entire country; and we have to prioritize that and use our 

resources wisely. 

Mr. CARTWRIGHT. What can Congress do to help EPA clean up 

these mines? 

Ms. MCCARTHY. Well, we think that the proposal that the 

President put in, which actually looks to establish a fee on 

hardrock mining, similar to what we do with coal mining industries, that would be utilized to address these legacy sites is an appropriate thing to do. It would be based on a polluter-pays 

principle, and provides significantly additional funds for us to at 

least begin to address these challenges. 

Mr. CARTWRIGHT. Now, for abandoned coal mines, funding comes 

from coal AML reclamation fees based on coal royalties. Correct? 

Ms. MCCARTHY. That is correct. 

Mr. CARTWRIGHT. While coal companies do pay royalties that go 

toward abandoned mine cleanup, they contribute only a small fraction of what we need to deal with the problem. 

We have to remember that the AML is set to expire in the coming years. I want to take this moment to urge Congress to turn its 

attention to reauthorizing the AML, so we can continue the 

important work in reducing the impact of abandoned mines. 

31 

I thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. I ask unanimous 

consent to enter Standard Form 95 into the record. 

[No response.] 

Chairman CHAFFETZ. Without objection, so ordered. 

[The information follows:] 


96242.004.eps
32 

Chairman CHAFFETZ. I now recognize the gentleman from Texas, 

Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. Ms. McCarthy, the 

EPA internal review documents of the spill said there is no documentation of flow for the Gold King Mine adit available before July 

2005, when the adit was discharging about 42 gallons per minute. 

Then, in September of 2005, it was up to 135 gallons per minute; 

in 2006, it increased to 314 gallons per minute; 2009–2014, the rate 

dropped again, all the way down to 13 gallons per minutes in 

September of 2014. According to the documentation your staff gave 

our committee staff on September 8, post-blowout adit discharge is 


96242.005.eps
33 

approximately 600 gallons per minute. Is there any new data since 

September 8 that changes the 600 gallons per minute discharge 

rate? 

Ms. MCCARTHY. I think I have a slightly lower figure, but I am 

happy to provide you with that, sir. I do not want to speak when 

I do not have all the data at my fingertips. 

Mr. GOHMERT. OK. You were coming to testify, and you do not 

know if EPA has made it worse since September 8 or made it 

better? 

Ms. MCCARTHY. Well, my understanding is that it is something 

on the order of 550 gallons per minute, if that is what you are 

asking me. 

Mr. GOHMERT. The problem is—and I love a good demonstration—but when we show tea or any other thing, and we are talking 

about real sludge, the facts are that before the blowout, the discharge rate was 70 gallons per minute; that is 100,800 gallons per 

day. Now, 600, maybe 550, but we are talking about 800,000– 

900,000 gallons, up 8 or 9 times what it was. That is with the EPA 

handling—— 

Ms. MCCARTHY. Well—— 

Mr. GOHMERT [continuing]. And, Ms. McCarthy, I am just blown 

away. You indicate that you did not anticipate—the EPA did not 

anticipate—that this type of blowout could occur. Now, when a—— 

Ms. MCCARTHY. I did not say that. 

Mr. GOHMERT. Oh, OK. So you just went into it knowing this 

kind of damage could occur, but not preparing for it. 

Ms. MCCARTHY. We went in there specifically because the concern was raised by us and other professionals that there was potentially a pressurized blockage there. We were actually trying to take 

action that would mitigate that. 

Mr. GOHMERT. OK. But it never crossed EPA’s mind that you 

may do more damage than you did good? 

Ms. MCCARTHY. Of course we tried—— 

Mr. GOHMERT. OK. Then what activity did you do to be prepared 

for when the flood gates flew open, and you did this kind of damage 

to the environment? 

Ms. MCCARTHY. What—— 

Mr. GOHMERT. How were you prepared for that—— 

Ms. MCCARTHY. What we did—— 

Mr. GOHMERT [continuing]. Other than with waivers of claim 

certificates? 

Ms. MCCARTHY. No, sir, we spent a great deal of time with the 

state of Colorado, with the Animas—— 

Mr. GOHMERT. Well, we are going to find out about that from 

Colorado, because you have told us before—you testified on July 9 

under the Waters of the United States Rule that that was developed—you said, ‘‘It is available in the docket, that is what we 

relied on, both the knowledge and expertise of our staff, the information we received from the public, and comments that—the 

science that is available to us.’’ 

But on April 27, Jo-Ellen Darcy, Assistant Secretary for the 

Army for Civil Works, from Major John Peabody, proved that that 

was a false statement, that the 4,000-foot determination was not 

based on science. You did not have proper evidence of that. Then 

34 

we had a Federal judge, Ralph Erickson, that verified that you did 

not—so you come in here and you tell us, ‘‘Oh, we worked with the 

state of Colorado.’’ It does not sound that way, once again; and the 

result is that we continue to have massive damage to the 

environment. 

Since you have been at the EPA, how many people, industries, 

or companies have been charged with criminal violations? 

Ms. MCCARTHY. I do not have that number, sir. 

Mr. GOHMERT. You have charged plenty of people, right? 

Ms. MCCARTHY. We have conducted enforcement activities that 

we should conduct, yes. 

Mr. GOHMERT. How many people at the EPA are under investigation right now for this massive discharge that you created? 

Ms. MCCARTHY. I am unaware of any criminal investigation, sir. 

Mr. GOHMERT. Well, I guess there is the rub, isn’t it? 

Ms. MCCARTHY. I—— 

Mr. GOHMERT. Your agency is above the law, with all the damage 

you do to the environment, and you want to be in charge of all the 

waters of the United States. You could not even figure out how to 

get ready for a possible discharge. I yield back. 

Ms. MCCARTHY. We are holding ourselves fully accountable, sir. 

Chairman CHAFFETZ. I thank the gentleman—— 

Mr. GOHMERT. You just—wait. 

Chairman CHAFFETZ. The gentleman’s time—— 

Mr. GOHMERT. She added the answer——who is being held 

accountable? 

Chairman CHAFFETZ. The gentleman’s time is expired. We are 

now going to recognize the gentlewoman from California, Mrs. 

Napolitano, for 5 minutes. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman; and thank you for 

being here, Ms. McCarthy. 

A lot of questions. First of all, in my subcommittee I was not 

privy to any information from EPA, and that I hold a little bit concerning. Please keep that in mind. 

How many of the companies that you know of that are mines— 

wherever, whether it is gold, silver, or coal, are foreign-owned? Do 

we have any record of that? 

Ms. MCCARTHY. I do not have that information. 

Mrs. NAPOLITANO. Do you have any way of being able to tell this 

committee? Because if some of those companies are foreign-owned, 

they are making money, they are not being—how would I say— 

made responsible for anything that they leave behind. They leave 

it up to the U.S. taxpayer to pick up any kind of remediation, and 

I think that needs to be part of the answer that we need to look 

at. 

In the rest of the United States—and I am very, very concerned 

about what happened in Las Animas—but what about the rest of 

the Nation that has these hundreds, maybe thousands of mines? 

How many of those are close to blowouts? Are there assessments? 

Ms. MCCARTHY. EPA is only involved in, actually, a small percentage of those. 

Mrs. NAPOLITANO. Why? 

Ms. MCCARTHY. Because the authority to look at these is spread 

among a number of agencies, and EPA generally focuses on—— 

35 

Mrs. NAPOLITANO. Can you break it down so that we have an 

idea of what the problem really is with some of these mines that 

may affect the health and welfare of our communities? 

Ms. MCCARTHY. We can do our best, but I can tell you that the 

ones that we follow are the ones on the National Priorities List, 

and the ones where we work with states to address what we consider to be an imminent threat or a need for emergency response. 

The Upper Animas was in that category. 

Mrs. NAPOLITANO. OK, but I would like to see if you can answer 

some of this for the whole committee. 

I am glad Mr. Bishop is worried about Fish and Wildlife and the 

Endangered Species. That is something that is near and dear to 

the heart of a lot of us. But with that, your budgeting, how much 

budget do you require to be able to do a job, to maybe look at 

avoiding what happened at Las Animas? 

Ms. MCCARTHY. Well, we just have an environmental fund that 

allows us to tap that for the response actions. 

Mrs. NAPOLITANO. How much is that fund? 

Ms. MCCARTHY. The Fiscal Year 2015 Superfund remediation 

action budget is $501 million. 

Mrs. NAPOLITANO. Does it have to be on the Superfund? Does it 

have to be designated a Superfund site? 

Ms. MCCARTHY. No, it does not. This is for remedial action that 

we need to take, whether it is on the Superfund list or not. 

Mrs. NAPOLITANO. And you are currently working on how many 

mines to be able to address the issues? 

Ms. MCCARTHY. I am sorry, I will have to get back to you—— 

Mrs. NAPOLITANO. Would you, please? Because that would kind 

of answer some of the questions I have. 

And then, how many other agencies are involved, or should be 

involved, besides Fish and Wildlife and the National Institute of 

Health—for being able to determine the status of the health concerns? CDC? What about BIA, Bureau of Indian Affairs? What role 

do they play in being able to notify Native American tribes? Are 

they immediate, do you work with them, or do you get them involved immediately and task them with doing the outreach? 

How many other areas do we have that are really concerning, in 

terms of contamination that are cancerous? Lead, arsenic, uranium, 

and the gold mines, the copper mines, what are the hard minerals 

that are there that are going to affect the health of our Nation? 

Ms. MCCARTHY. Well, there are at least 161,000 abandoned 

mines. While we are talking about ones we know, there are so 

many that we do not know. We know we have experience in looking 

at these mines, and they involve sudden releases like the ones we 

were talking about here and the potential for that. There are also 

periodic mine discharges that are impacting headwaters. There are 

a lot of them. 

Mrs. NAPOLITANO. I am running out of time, but I want to be 

sure that my colleague in Pennsylvania—if there is a continuous 

release, is that one of the areas that EPA may be looking at to be 

able to help address the issue? 

Ms. MCCARTHY. Well, the challenge for us is really there are a 

lot of these issues. I do not know whether that specific one is on 

the NPL. I doubt that. I do not know if others do—— 

36 

Mrs. NAPOLITANO. He is shaking his head no behind you, so they 

do not know. 

Ms. MCCARTHY [continuing]. But when a state wants us to come 

in and work with them, we do our best—— 

Mrs. NAPOLITANO. But is it only at the request of a state, or do 

we have the ability to have you look at a lot of these mines? 

Ms. MCCARTHY. No, we make priorities depending upon what we 

find out and what we are asked to do, but the challenge for us is 

it is limited. And that does not take care of the long-term problem; 

it takes care of short-term problems. 

Mrs. NAPOLITANO. So, what do we need to do to address that in 

the long term? 

Chairman CHAFFETZ. I thank the gentlewoman. The 

gentlewoman’s time has expired. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Chairman CHAFFETZ. We now recognize the gentleman from 

Florida, Mr. Mica, for 5 minutes. 

Mr. MICA. Thank you. Let me kind of pick up where Mr. 

Gohmert, the gentleman from Texas, left off on the issue of 

accountability. 

If a private company, corporation, or individual dumped 7,500 

gallons of toxic chemical into a natural waterway, wouldn’t there 

be a penalty? Wouldn’t you hold them accountable? 

Ms. MCCARTHY. It all depends on the circumstances, sir. We 

would hold them accountable for cleanup—— 

Mr. MICA. You would investigate. But—— 

Ms. MCCARTHY [continuing]. But whether or not there would be 

a penalty involved would depend on the circumstances. 

Mr. MICA [continuing]. They would be—someone would be held 

accountable—— 

Ms. MCCARTHY. That is correct. 

Mr. MICA [continuing]. Responsible, you would review that. 

Ms. MCCARTHY. Yes, yes. 

Mr. MICA. And you do that. That is part of your responsibility. 

One of the frustrations I think that Members of Congress and 

the American people have is holding agencies accountable. You 

have been there since July of 2013. You were there during this 

spill. Is that correct? 

Ms. MCCARTHY. Yes, sir. 

Mr. MICA. And you are in charge of the agency? 

Ms. MCCARTHY. Yes, sir. 

Mr. MICA. Is there an SES individual below you, or a deputy that 

also would be responsible for this, for—— 

Ms. MCCARTHY. Well, we have—— 

Mr. MICA [continuing]. Looking at this matter, and overseeing it? 

Ms. MCCARTHY. I have an assistant administrator. 

Mr. MICA. OK. And who is that? 

Ms. MCCARTHY. Mathy Stanislaus. 

Mr. MICA. OK. Then you have a regional administrator. 

Ms. MCCARTHY. That is correct. 

Mr. MICA. Is that Shaun McGrath? 

Ms. MCCARTHY. That is correct. 

Mr. MICA. OK. And then you have an on-scene EPA—— 

Ms. MCCARTHY. On-scene coordinator. 

37 

Mr. MICA. Who is that, for the record? 

Ms. MCCARTHY. I do not know the individual’s name. 

Mr. MICA. OK. And you have conducted some preliminary 

investigation? 

Ms. MCCARTHY. Yes, we have—— 

Mr. MICA. Everything we see, it looks like there was a mistake. 

You have a contractor, too, who the EPA was overseeing. Who is 

being held accountable, based on the information that you have so 

far? 

Ms. MCCARTHY. One of the reasons why we asked DOI to do an 

independent investigation was to make sure that somebody independently looked at that, and provided us information, so that we 

could follow up to see if there was any—— 

Mr. MICA. And that is not complete? 

Ms. MCCARTHY [continuing]. Lack of judgment or lack of 

oversight, or—— 

Mr. MICA. That is not complete, that process? 

Ms. MCCARTHY. No, sir. That is going to be completed in October, 

is my—— 

Mr. MICA. I want you to tell the committee and report back to 

the committee who is held responsible. I have reviewed some of the 

bonuses given to different agencies in the past; and at least, historically, EPA has paid some of the biggest performance awards. In 

fact, some of your SES-class folks, 64 percent of them got bonuses. 

I want to know if there are any recommendations pending for 

any bonuses for any of these individuals, and have that made part 

of the record. I would like that in the next 30 days. 

Then also, I want, for the long-term record, for you to report back 

to the committee the findings and who is held accountable. I think 

that is the least we can do. 

Ms. MCCARTHY. Yes. 

Mr. MICA. Then what action is taken to those individuals who 

have done this damage to the environment, and caused untold 

damage to the people sitting behind you, who we are going to hear 

from. 

The other thing, too, is the estimate of the cost for getting this 

all back to regular order. 

Ms. MCCARTHY. I understand. I am happy—— 

Mr. MICA. Do you have any estimate? 

Ms. MCCARTHY. In terms of what it would take? I know that we 

have already spent somewhere upwards of $10 million. We expect 

that will go up considerably over time. Again, the challenge we 

have is to look at the Upper Animas River, because, while there 

may be some continued discharge from the Gold King Mine, there 

continues to be a much larger discharge from that area. 

Mr. MICA. So $10 million. Again, all I think—— 

Ms. MCCARTHY. That was just the emergency, the immediate 

response—— 

Mr. MICA. This is a reasonable request, that we hold you—— 

Ms. MCCARTHY. Absolutely. 

Mr. MICA [continuing]. And others accountable who are responsible for this. It can be based on the independent findings, but we 

are looking at $10 million of cost, and a disruption to many parties. 

Is that correct? 

38 

Ms. MCCARTHY. I fully recognize, and I expect to be held 

accountable. That is the job of this committee, I fully respect it and 

I will cooperate in any way I can. 

Mr. MICA. Finally—I have just a second here—we have pending 

in some court issues dealing with the redefinition of ‘‘navigable waters,’’ and the rule. 

Ms. MCCARTHY. Yes. 

Mr. MICA. What is the status, very briefly, of that? Is the rule 

going into place—— 

Ms. MCCARTHY. Yes. 

Mr. MICA. Is it on hold? And what are you doing? 

Ms. MCCARTHY. The rule is actually being implemented, except, 

I believe, in the 13 states where there was a decision by a judge 

to actually issue a preliminary injunction. So, in all but those 13 

states, it is being fully implemented, as we are sitting here, yes. 

Mr. MICA. Thank you. 

Chairman CHAFFETZ. I thank the gentleman. We will now 

recognize the gentleman from Missouri, Mr. Clay, for 5 minutes. 

Mr. CLAY. Thank you, Mr. Chairman. Administrator McCarthy, 

most of the cleanup of hazardous waste from abandoned and inactive hardrock mines like Gold King is carried out by the EPA and 

state government agencies. 

Ms. MCCARTHY. That is right. 

Mr. CLAY. The hazardous waste at these abandoned mines was 

caused, however, by the activities of mining companies, not EPA or 

state government. Is that correct? 

Ms. MCCARTHY. That is correct. 

Mr. CLAY. It was the mining companies that made the mess, but 

those companies are not the ones cleaning it up. Do mine owners 

or operators have any legal obligation to clean up the pollution 

they leave behind? 

Ms. MCCARTHY. It is my understanding that there is some liability in some cases, but consistently, in these legacy sites, the owners 

are absent from the discussion. 

Mr. CLAY. Why is the EPA involved at all in the cleanup of 

inactive mines like Gold King? 

Ms. MCCARTHY. We were there because of the concern of a potential blowout and the concern of the water quality that was being 

consistently degraded from the mine seepage that was entering 

into the Cement Creek and the Animas River. 

The Cement Creek, literally, has, as far as I know, no fish whatsoever. For miles downstream in the Animas, the fish population 

has almost gone down to zero. So, EPA has been looking at this as 

a potential NPL site, a Superfund site; and, short of that, looking 

at how we coordinate with the state and with the local stakeholders to address the challenge, short of issuing a decision to put 

it on the NPL site. 

Mr. CLAY. So, there are constant pollutants seeping into the river 

from the mine, and it has been going on for years, apparently—— 

Ms. MCCARTHY. Large discharges. There is no question that the 

Animas has been struggling; but our hope was that we could continue to work together and get that quality shifted into another direction, and get that quality continually improved, instead of 

degraded. 

39 

Mr. CLAY. And, of course, today’s hearing—you do not have to 

respond to this—but today’s hearing is to blame the EPA for the 

callous disregard of mining companies, of not being good stewards 

of our environment. I think it is a farce, what we are conducting 

here with you. 

I understand that for abandoned and inactive coal mines, there 

is a dedicated funding source for mine waste cleanup which is derived from fees collected on each ton of coal mined in this country. 

Is there a similar funding source for hardrock mine remediation? 

Ms. MCCARTHY. There is not, but that is what the President’s 

Fiscal Year 2016 proposed budget is suggesting should happen. 

Mr. CLAY. Are mine owners financing the cleanup of the mine 

waste that pollutes the land and rivers for decades after the mines 

cease operations? 

Ms. MCCARTHY. In most cases, no, sir. 

Mr. CLAY. Oh, my. Do you believe the President’s proposal, if 

enacted, would help provide necessary resources for cleaning up 

abandoned mines? 

Ms. MCCARTHY. I do, sir. 

Mr. CLAY. Well, it is about time that we, as a Congress, get serious about responsible parties, and who is responsible for making 

this mess and cleaning it up. It is the same thing with radioactive 

waste left all over the landscape, and nobody wants to take responsibility for it. Yet you want to dump on the EPA today. I think we 

should be ashamed of ourselves. We should be ashamed of what we 

are doing in this committee today. 

The current owner of Gold King Mine, Todd Hennis, told CNN 

in August, ‘‘I have been predicting for the last 14 years that the 

situation would continue getting worse and worse. I foresaw disaster, and that has been borne out.’’ Well, why are taxpayers responsible for cleaning up abandoned mines, while owners can sit 

back and do nothing? 

That is the question we need to be asking, as a committee. Why 

don’t they have any responsibility, when they made the mess? We 

all have a responsibility to be good stewards of the environment, 

but in this case we will let that one party off. 

Mr. Chairman, I yield back my time. 

Chairman CHAFFETZ. I thank the gentleman, and I hope he has 

the guts to stand here and ask the President of the Navajo Nation 

if what we are doing here today is a farce. 

Mr. CLAY. And I hope we have the guts, as a Congress, to 

actually try to clean it up and stop pointing fingers. 

Chairman CHAFFETZ. Well—— 

Mr. CLAY. That is what I hope. 

Chairman CHAFFETZ. We will see if you ask the Navajo Nation 

if it is a farce. We will now recognize the gentleman from 

Louisiana, Mr. Fleming, for 5 minutes. 

Dr. FLEMING. Thank you, Mr. Chairman. Ms. McCarthy, in 

Louisiana we have a saying that the chef should occasionally taste 

her own sauce. What do I mean by that? 

I want to bring up a different issue, but it is connected. Are you 

familiar with the Camp Minden issue, relative to the EPA? It was 

handled out of Dallas. 

Ms. MCCARTHY. Yes, I am. 

40 

Dr. FLEMING. What happened was there was a big explosion in 

2012, as a result of propellant, this explosive that had accumulated 

over 15 million pounds; and it was a lack of oversight by the U.S. 

Army over this private company that allowed this to happen. 

So, we had the problem with, ‘‘How were we going to get rid of 

this 15 million pounds? ’’ And, of course, EPA became involved. But 

we were shocked that the EPA, first of all, said, ‘‘Well, we are not 

sure. I guess the local state would probably have to pay for it.’’ We 

finally got money from the Superfund. 

Then, after analysis, the EPA said, ‘‘We are just going to burn 

it in the open,’’ which means all of these toxic substances—arsenic, 

lead, whatever—going into the air, into our ground, and into our 

water. 

Now, I think back about the coal industry that has been more 

or less severely hampered, if not shut down, because of CO2 emissions, which certainly is not as toxic—if toxic at all—as arsenic and 

lead. We have coal-fired plants being shut down and now we have 

the Waters of the U.S. But I was shocked, and the local community 

was shocked, when the EPA came in and said, ‘‘We see nothing 

wrong with the open burn of 15 million pounds of propellant.’’ 

We pushed back on it. We had many hearings locally. We finally 

got the EPA to back down and to allow a closed burning, which is 

a more costly procedure. It really seems ironic to me that the EPA, 

which can provide huge fines on private industry and individuals, 

and can actually put people in jail through criminal activities of 

pollution, would be so cavalier in this case. In fact, only because 

of pushback from the community did we get the EPA to do the 

right thing. The EPA was clearly trying to take the shortcuts and 

avoid the cost. 

Then you look at this situation. Incompetently, the EPA allowed, 

of course, this toxic spill, this water that is now in our environment; it will never be cleaned up completely. I guess what I am 

saying is it seems like, to me, there is a double standard. The EPA 

is not holding itself to the same standards that you hold individuals and industry itself to. 

Ms. MCCARTHY. Well, sir, let me respond on Camp Minden. I 

actually could not be more pleased of the outcome, and it took a 

long time to get there. I do appreciate the way in which the state 

intervened on that, as well as all of the elected officials. 

Dr. FLEMING. Yes. 

Ms. MCCARTHY. It was an option that was chosen by the DOD. 

It was not an uncontrolled burn. But, I think we have ended up 

in a much better place, one that the community really participated 

wonderfully well in, and I could not be more pleased. 

Now, in terms of this effort, I want you to understand—and I am 

sure that you do—that EPA’s job was to try to support an effort 

to address what we knew was almost a likely inevitability of a 

blowout at that mine, as well as knowing that the river was being 

damaged each and every day, as a result of the mining in the 

Upper Animas. 

Should that spill have occurred? No. Are we going to figure out 

whether we could have done something about it, done something 

different—— 

Dr. FLEMING. But here is my question, Ms. McCarthy—— 

41 

Ms. MCCARTHY [continuing]. We will find that out—— 

Dr. FLEMING. I appreciate that. My question is that private 

citizens, Americans, and companies—— 

Ms. MCCARTHY. Yes, yes. 

Dr. FLEMING [continuing]. Are held to a high standard, and the 

punishments are severe. But, we are not hearing today of any punishments, or reductions in pay, or even firings that are going to 

occur because of this incompetency. That is the point I am making, 

it is a double standard. 

Yes, I know you are doing the best you can, and so forth. But 

one agency after another, the VA and now the EPA, has these responsibilities and these broad powers that no single company has, 

to inflict damage, to inflict severe punishment and penalties on 

Americans. Yet we do not find anything within the Agency where 

the decisionmakers and the people with all this power have any accountability for that. 

Ms. MCCARTHY. Sir, when a spill like this happens, the accountability is for the person who actually needs to take responsibility 

for that spill to do so, which we had. 

The second level is, ‘‘How did it happen, and was there activity 

that should have been done differently. Is it criminal? Is it civil? 

Is it negligent? ’’ That is what we are looking at now. We are independently having that done, and I will live with those consequences. I will appropriately take action—— 

Dr. FLEMING. We will certainly want to hear who those decisionmakers were and what happened to them. Thank you, and I yield 

back. 

Chairman CHAFFETZ. I thank the gentleman. We will now recognize the gentlewoman from Massachusetts, Ms. Tsongas, for 5 

minutes. 

Ms. TSONGAS. Thank you, Mr. Chairman. And welcome, 

Administrator McCarthy. 

This has not been a simple conversation for you. A lot of questions have been raised, I think on both sides of the aisle. I think 

we were all dismayed to see the horrific way in which the river was 

so impacted. I happen to come from a district that is rooted in the 

Industrial Revolution, where rivers have run various different colors, depending on the dye that was cast into them—— 

Ms. MCCARTHY. I remember that. 

Ms. TSONGAS [continuing]. At the end of the manufacturing days; 

so we are all very concerned about how we care for our rivers. 

Obviously, this spill does warrant an investigation, but I do think 

I have to give you credit for being willing to be here and answer 

appropriately the questions that we all have. So, I want to thank 

you for it. 

I think it is somewhat disingenuous to compare this with a private spill. As we have heard, you all have proactively made a decision to investigate yourselves through the Inspector General and 

the EPA, and through the Bureau of Reclamation, as well as doing 

an investigation. As you have said, you will accept the outcome of 

that and take appropriate actions. 

What is also different here is that this is a legacy site. Mine 

operators who benefited from the various metals that were in those 

grounds have subsequently abandoned them and left an 

42 

environmental mess, and we have a difficult time holding them accountable. You have said that you were there because of concern 

with a blowout, the possibility of a blowout, and the degraded 

water quality. You have also noted there are 161,000 such abandoned mines in which these issues present the EPA with a challenge of how best to fix them. 

You have also talked about—given that long list, you create a 

National Priorities List. I am curious, and think it would really be 

helpful for you to explain how you prioritize, given the vast number 

of mines that have the great potential to pose such harm to our 

environment. 

Ms. MCCARTHY. We actually prioritize it in a couple of different 

ways. We have factors that we consider, in terms of what deserves 

to be on the National Priorities List. In this particular case, we 

started back in the mid-1990s, looking at this, and actually suggesting that it be on the National Priorities List. But what we 

found at that point in time was that the communities and the 

states were actually getting together an Animas River Stakeholder 

Group, who insisted that they could do a good job at addressing 

this issue without taking that measure. 

They actually did a good job. Up until 2005, that river was getting cleaner all the time. But there was a turnaround in the river, 

and that turnaround meant that we were getting a lot more discharges. We see fish populations degrading. That is why we were 

continuing to look at it as of 2008, to see if we should look at the 

upper creek, the Cement Creek, as the section that we would 

articulate and look at for the National Priorities List. 

Out of that discussion came a collaborative effort with the state 

and the Animas River Stakeholder Group to take a look at what 

we could do. That is when the concern of a blowout arose, and we 

started working on a work plan that was very public, went to public hearings about what EPA could do to try to address that issue 

while people looked at the long-term challenge and thought about 

how best to do it. 

That is the history of this site. It is a long one, and, obviously, 

today, not a successful one. 

Ms. TSONGAS. So, the local community—how did the communities 

initiate their interaction with the EPA? What was the process by 

which that took place? 

Ms. MCCARTHY. Actually, we have been working with them since 

at least the mid-1990s, that is how far back it goes. They pulled 

together the stakeholder group, that was really those people who 

worked in the mines, public citizens, local leaders, and state representatives. EPA helped to participate in some of those. It really 

just became a collaborative effort, knowing that they had a large 

problem, and that we had to work together. That became the tone 

of the discussion. EPA was not there to work as a lone entity. It 

was there to share ideas, to bring our mining experts to the table, 

to work with the state of Colorado and folks who knew the area 

better than we did, and to identify what work should happen. 

That was the work plan that we were working under at the time 

that this spill occurred. It was fully developed with everybody’s 

input, with public hearings. Now, did we underestimate the potential of the spill at the site? Did we do something we should not 

43 

have? Those are the issues that the independent review will give 

a fresh eye to. But it was not because we did not try, and it was 

not because we were not working collaboratively. 

Ms. TSONGAS. Was the mine operator, the former mine operator, 

a part of any of those discussions? 

Chairman CHAFFETZ. I thank the gentlewoman. Sorry, the gentlewoman’s time has expired. I now recognize the gentleman from 

Michigan, Mr. Walberg, for 5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman; and Administrator 

McCarthy, thank you for being here. 

Before I go back to some responsibility questions, let me get to 

something I think is practical, especially since snowy weather, winter, may indeed be coming to this area very soon. It is expected 

that snow and wintery conditions will hit the Upper Animas area 

as soon as early October, which I would assume will impact the 

testing, recovery, and remediation efforts. What steps is EPA 

taking to prepare for these conditions? 

Ms. MCCARTHY. We are looking at two efforts, primarily. One is 

we are looking at a long-range monitoring plan that we are about 

to put out in draft to all of the groups that we are working with 

in the area, including the state, local and county officials, and the 

tribes. We will hopefully get some long-range monitoring plan 

agreed to that will consider the challenges that we are facing with 

the winter months coming up. 

Mr. WALBERG. Can you guarantee that you will not abandon the 

site during the winter? 

Ms. MCCARTHY. We will not abandon the site. The second thing 

we are doing is taking a look at whether we need to enhance the 

treatment process right at the site. That is not the full remediation 

that the Upper Animas needs, but we are looking at that issue in 

collaboration with the state and local communities, and the tribes, 

as well. 

Mr. WALBERG. How many other sites similar to the Gold King is 

EPA currently working at or involved with right now? 

Ms. MCCARTHY. Well, first of all, I have actually issued a memo 

holding off on continued work on similar sites until we see what 

went wrong. What are we going to—— 

Mr. WALBERG. With this site? 

Ms. MCCARTHY [continuing]. See from the independent—from 

this site—so that we can learn those lessons, and ensure it does not 

happen again. 

My understanding is that we have, at this point, identified 10 

sites to actually have work put on hold that seem similar enough 

that we want to just monitor that situation, as long as there is not 

an imminent hazard. We are waiting on that October review to 

take a look at it. 

Mr. WALBERG. Isn’t it true that the contractor, whose work 

caused or contributed to the disaster, is still working at the Gold 

King site? 

Ms. MCCARTHY. Yes, that is true, sir. 

Mr. WALBERG. Do you think the contractor that played such a 

huge role in this disaster should be working at the site? 

Ms. MCCARTHY. I think one of the challenges that we face is that 

our on-scene coordinator was at that site, and they were overseeing 

44 

that work. The contractor, as far as my understanding, was doing 

the work dictated under the work plan. They are a very experienced contractor. We have no information that says that they had 

done anything wrong. 

We certainly know that the work plan was not sufficient—— 

Mr. WALBERG. Just a big yellow plume. 

Ms. MCCARTHY. Well, that was a result of, obviously, actions that 

we took. It was unanticipated. It was a decision we made with mining officials, ourselves, the states, and others. We need to look at 

what went wrong, but they are actually actively working to see 

that the—— 

Mr. WALBERG. Were they given a $500,000 additional—I guess 

you would not call it a bonus, but $500,000 additional to clean up 

the mess they made? 

Ms. MCCARTHY. I am not aware of what the sums are. If you are 

referring to the fact that they were the first on site and the most 

able to contain the spill, to construct the treatment facilities right 

at the spill location, and to contain it; they were there, they helped 

to do that. What that accounted for, in terms of time and money, 

I do not know. 

Mr. WALBERG. Well, I would appreciate you checking into 

that—— 

Ms. MCCARTHY. I will—— 

Mr. WALBERG [continuing]. Because it seems that it is indicated 

that this company, this contractor, that was highly responsible for 

the disaster, they were there, and they were able to be there as 

quickly because they were there. They were the ones that were 

doing it and caused this spill to take place, but it appears that they 

received an additional $500,000 on top of their contract to now do 

the cleanup for the mess that they made. That, to me, does not 

sound appropriate. 

Ms. MCCARTHY. Sir, I am happy to provide you the information 

on what other compensation may have been given to this contractor, but I also want to reiterate that EPA is the one that is taking full responsibility for this. DOI will tell us whether mistakes 

were made at the site, or whether there was any misjudgment or 

work that we did not do, in terms of—— 

Mr. WALBERG. Well, let me get to that, and I appreciate that you 

have said that numerous times. We appreciate any entity that 

says, ‘‘The buck does stop here.’’ 

Tell the committee in what ways EPA failed and bears the blame 

in this case. 

Ms. MCCARTHY. We are going to wait for the DOI review to tell 

us that. 

Mr. WALBERG. What do you think? I mean we can read 

reports—— 

Ms. MCCARTHY. Yes. Well, lessons—— 

Mr. WALBERG. What do you think? 

Ms. MCCARTHY. There are certainly already lessons learned. Do 

I think we were as good as we should be on notification? No, I do 

not think so. I realize that we had three different regional offices 

involved, we had 120 miles to account for before it even hit the 

Navajo Nation lands. We should have been more on top of that, 

45 

and we should be looking at that. That is why we have already 

demanded that those actions take—— 

Did we work effectively to get our response actions up? I think 

our response actions have been good. Can they always improve? We 

will look at ways in which we can do that. So we are trying to get 

the lessons learned here. One of the big open questions, I think, 

that you have raised in this committee—and I am sure we will be 

talking about again—is how did this spill happen? Did we look at 

this in a way that was not due diligent enough? Did we have the 

right people there, looking at—— 

Mr. WALBERG. And I think that goes back to the contract as well. 

So—— 

Chairman CHAFFETZ. I thank the gentleman—— 

Mr. WALBERG. I thank the Chairman. 

Chairman CHAFFETZ. Time has expired. We will now recognize 

the gentleman from Massachusetts, Mr. Lynch, for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. Ms. McCarthy, normally 

when I see an old friend at a wake or a funeral, I say, ‘‘It is good 

to see you, just sorry to see you under these circumstances.’’ So it 

is good to see you, just sorry to see you under these circumstances. 

Ms. MCCARTHY. Does it feel like that to you, too? 

Mr. LYNCH. Yes. Well, I love my EPA in my region. I have to say, 

just—— 

Ms. MCCARTHY. Thank you. 

Mr. LYNCH. I want to say some good things here. They are very 

responsive, very conscientious; and I appreciate the work that they 

do. 

But this is not the EPA’s finest hour. I think you would admit 

that. I actually have a connection to this whole incident. I used to 

live in Farmington, New Mexico. 

Ms. MCCARTHY. Really? 

Mr. LYNCH. I actually was an iron worker there, and lived on the 

Navajo Reservation. I was a guest of the Navajo Nation for a couple of years. I know how the tribe is intensely invested, not only 

financially, but spiritually—— 

Ms. MCCARTHY. Yes. 

Mr. LYNCH [continuing]. In their land. I was honored to be their 

guest for a couple of years. 

What troubles me here is that we often see how the EPA works. 

They have an almost maddening hyper-technical compliance regime 

for businesses. That is often the case. Yet, in this case, internally, 

it seems that the EPA abandoned all that hyper-technical compliance in its own application of its actions. 

What are we going to do? What are we going to do here to help 

the Navajo recover? What are we going to do to get this straightened out and cleaned up? Can we get a promise from you that you 

are all in on this, and that you are going to be as relentless in 

cleaning up this spill and this accident as you have been in some 

cases where you come down on some industries, that we are all 

aware of, that found themselves in a similar situation? 

We need that type of guarantee. We need you to be all in on this. 

We need you to be relentless in terms of fixing your mistake with 

what happened here. I mean, albeit, I know there were good 

intentions here, but, good Lord, this is a beautiful area, and now 

46 

it is damaged extensively. We need your help to set this thing 

right. 

Ms. MCCARTHY. Well, I think you know, from my forthrightness 

about taking responsibility for this, that we are all in. Is it extraordinarily difficult and upsetting for the Navajo? There is no question 

about it. I recognize that. We are working to try to figure out what 

we can do together to resolve the circumstances here, but I know 

that it is going to take a really long time. And this is not EPA’s 

final—best—what did you say? Finest hour. 

But I am here to tell you that we are taking responsibility, we 

will do that in the long term, and we will find a way to get to the 

Animas River and the San Juan in a way that takes care of the 

underlying fundamental challenge we have here. 

But, I want to say that this was not a compliance issue. This was 

a response action to deal with, basically, contamination that EPA 

was not the responsible party for. Am I excusing our role in this? 

Did our actions actually contribute to this? If we did anything 

wrong, we will be fully accountable for that. In the meantime, we 

have to make good to the Navajo, the Southern Ute, the Ute 

Mountain Ute, and the states that are involved in this. There is no 

question about it. 

Mr. LYNCH. Yes. As I said before, there is a spiritual dimension 

to this for the Navajo and the Ute, as well. I lived not too far from 

Shiprock, and there is an intense investment here on the part of 

these tribes. This is their homeland. Sometimes we forget that they 

are a sovereign nation, and we have a huge responsibility here to 

fix what we have exacerbated. Maybe we did not create it, but we 

certainly exacerbated the problem here; and we need to step up in 

a big way and meet our obligations. 

Mr. Chairman, I will yield back. 

Chairman CHAFFETZ. I thank the gentleman. I now recognize the 

gentleman from California, Mr. McClintock, for 5 minutes. 

Mr. MCCLINTOCK. Thank you, Mr. Chairman. Ms. McCarthy, the 

EPA posted videos to its Web site taken by on-site contractors at 

the spill emerging out of the mine as it happened. I think we saw 

a clip of that earlier. 

On September 9, EPA Assistant Administrator Mathy Stanislaus 

testified before the House Science Committee on these videos, and 

I think we have a clip of that testimony. 

[Video shown.] 

Mr. MCCLINTOCK. I am going to ask they stop it here. Obviously, 

the tape was heavily edited. This was a week ago, when your 

agency was giving misinformation to the Congress. 

You have had a week, and I am going to ask you again. Is this 

editing and concealing of videos EPA’s idea of transparency and 

accountability? 

Ms. MCCARTHY. No, sir. That originally-posted video should not 

have been redacted. When it was pointed out to us, we have posted 

the unredacted version on our Web site. 

Mr. MCCLINTOCK. You understand the concern here. 

Ms. MCCARTHY. Yes. 

Mr. MCCLINTOCK. There are two, basically. One is the fundamental competence of the EPA, and I think that speaks for itself 

47 

in this incident. The other is the double standard that seems to be 

at work here. 

You testified earlier in this hearing that you are not required to 

consult with the National Fish and Wildlife Service, because you 

did not intend to cause the spill. Well, the Chairman pointed out 

there is a company that accidentally spilled 7,500 gallons—onefourth of 1 percent of what the EPA spilled, and you went after 

those people viciously and got six criminal indictments. You are 

sending people to jail over that. 

Some other poor guy in Alaska operating a backhoe accidentally 

causes a 1,500-gallon spill. That is five-hundredths of 1 percent of 

the spill that EPA, and you sent him to prison. 

No criminal charges are being filed against EPA officials, are 

there? 

Ms. MCCARTHY. Well, I think that we are waiting for the 

Department of the Interior to actually produce a report. If they 

identify criminal or administrative concerns—— 

Mr. MCCLINTOCK. Well, you understand the skepticism of the 

Agency investigating itself. 

Ms. MCCARTHY. No, the Agency is not—— 

Mr. MCCLINTOCK. You say you are holding yourselves accountable, that you are going to take full responsibility. Does that mean 

that you are resigning? 

Ms. MCCARTHY. No, sir. It means that I am actually having 

the—— 

Mr. MCCLINTOCK. Well, have you asked—— 

Ms. MCCARTHY. I am having—— 

Mr. MCCLINTOCK. Have you asked any of your subordinates to 

resign? 

Ms. MCCARTHY. No, sir, not—— 

Mr. MCCLINTOCK. Have you docked anybody’s pay? 

Ms. MCCARTHY. No, sir. 

Mr. MCCLINTOCK. Have you yelled at anybody? 

Ms. MCCARTHY. Well, maybe. 

Mr. MCCLINTOCK. Have you—— 

Ms. MCCARTHY. Sir, I am taking accountability for the spill and 

issues around that; but we are working as closely as we can to 

independently get this looked at, and we will be holding people 

fully accountable—— 

Mr. MCCLINTOCK. One more question. There was a blog entry reporting on this, pointing out that after the initial spill things went 

from bad to worse for those relying on the river. 

For example, Navajo farmers, unable to use water from the river, 

were provided with emergency water reserves from the EPA. Unfortunately, this water was contaminated, too, prompting another 

attempted EPA cover-up. According to The Guardian, EPA officials 

originally told Navajo leaders the individual reporting the contamination was ‘‘unstable,’’ and deliberately ‘‘agitating’’ in an attempt 

to undermine the Agency. The Navajo leader took the EPA at its 

word, at least until he observed the pollution for himself. Is this 

true? 

Ms. MCCARTHY. What I understand is that those tanks were tested by the Navajo and found to be clean. It was drinking water put 

into fully cleaned tanks. That is my understanding of the situation. 

48 

There was definitely concern. Do I think the level of mistrust 

contributed to that? Do I understand why, given EPA’s responsibility here? I absolutely do. It is going to take a long time, I think, 

before anybody begins, at least in the Navajo, to be able to trust 

our relationship again. Do I regret that? 

Mr. MCCLINTOCK. Yes. 

Ms. MCCARTHY. But I am working with them. If they want thirdparty review of everything we do—we are trying to identify how we 

do this. 

We will rebuild this trust; but damage has been done beyond 

what happened to that river, and it is going to take a long time 

to repair that. I am going to do the best I can to make sure that 

happens. 

Chairman CHAFFETZ. I thank the gentleman. I now recognize the 

gentleman from California, Mr. Lowenthal, for 5 minutes. 

Mr. LOWENTHAL. Thank you, Mr. Chairman, and both of the 

Chairs for holding this hearing. And thank you, Administrator 

McCarthy, for coming, for being so forthright, for not trying to duck 

tough issues, and for being accountable. 

But I think that we still have to go back to some of the points 

that were made before, that the Gold King Mine spill tragedy reminds the Nation of the reality that we have ‘‘a creeping killer in 

the shadows.’’ There are up to a half million abandoned mines, nationwide. Many of these mines are dangerous. They are discharging 

toxic, acidic mine waste into our surface waters; and if we do not 

do anything to properly clean them up and close them down, we 

will have more disasters. That is it. I think that is what I have 

learned after being here. 

I am very sorry it took this tragedy, and I am sorry for some of 

the actions that have been taken; but I am really glad that we are 

focusing our attention on what is frequently ignored or forgotten— 

and that is to help address this problem of abandoned mines. I 

point out again that Ranking Member Grijalva, many of my colleagues, and myself, have introduced legislation that would secure 

funding to clean up and properly close down these dangerous 

mines. 

H.R. 963, the Hardrock Mining Reform and Reclamation Act, 

would also provide assistance to mining communities and ensure a 

fair return to taxpayers for extracting public minerals. I would like 

to urge all my colleagues here today to become co-sponsors of this 

important legislation, and help us to prevent the next abandoned 

mine contamination release before it happens. 

Now, Administrator McCarthy, these may seem like obvious 

questions I have. Some have already been gone over, but I would 

like to get them on the record. 

The EPA, as I understand, was partnering with the state of 

Colorado on the Gold King Mine project. Is that correct? 

Ms. MCCARTHY. Yes, sir. We were cooperating with them, yes, 

and coordinating our efforts. 

Mr. LOWENTHAL. Why was the EPA in Colorado working with the 

state on the Gold King Mine, as well as on other mines in the area? 

Ms. MCCARTHY. Because of the degradation of the water quality 

in the Animas River and the San Juan River that was being 

49 

contributed to by these 400 mines in the Upper Animas, as well as 

the threat of a blowout at the mine, which was a very big concern. 

Mr. LOWENTHAL. How did that happen? Why were we in this 

situation? 

Ms. MCCARTHY. It is a long history, but those mines have really 

not been actively worked since 1991. Since that time, there has 

been a buildup of water in the system. Some of the mines in the 

area have been plugged, which shifts the hydrology, which creates 

a backup. In the Gold King Mine itself, it had some collapses in 

the mine, which made it inaccessible; so we were trying to get a 

handle on the situation that was growing increasingly dangerous. 

Mr. LOWENTHAL. And the question to me is—again, to clear up— 

why were the original mining operators—why did they not clean 

this up? And who will now be paying for this cleanup? 

Ms. MCCARTHY. My understanding is that, for the most part, 

they are not obligated to. What we use, in terms of our resources, 

are taxpayer dollars; they are given to us, appropriated, by Congress. 

Mr. LOWENTHAL. So, it is the taxpayers that will be paying for 

this—and, not only this. As we look into the future, as you already 

stated, we have incomplete data as to where abandoned mines are, 

what toxins they are releasing into our waterways, and we are currently unable to adequately pay for the cleanup of these abandoned 

mines. 

It seems to me, if we take a larger view of the Gold King Mine 

disaster, and we move forward with legislation, that something like 

the Hardrock Mining Reform and Reclamation Act would provide 

the funding for cleaning up these abandoned mine sites. Is that not 

so, that something like this would be appropriate? 

Ms. MCCARTHY. It would certainly help, sir. 

Mr. LOWENTHAL. Thank you, and I yield back. 

Chairman CHAFFETZ. I thank the gentleman. I now recognize the 

gentlewoman from Wyoming, Mrs. Lummis, for 5 minutes. 

Mrs. LUMMIS. Thank you, Mr. Chairman. Thank you, Director 

McCarthy, for being here. Let me set up a scenario. 

A number of years ago, there was a water treatment plant that 

was actually downstream that was treating the water from this 

mine. About 10 years ago, there was a storm; it was damaged, it 

needed to be replaced. A decision was made not to replace it, not 

to treat the water that was coming down. 

Next, EPA and the state of Colorado created a plan to clean up 

the mine, rather than just treat the water going downstream. So, 

they blocked off the flow of water from drainpipes in the mine. 

When they plugged the drainpipes, the water built up into a huge 

wall of water in the mine; and that was a significant cause of the 

blowout last month. 

So, rather than replace the treatment plant downstream that 

was providing cleaned-up water to the Utes and the Navajos, the 

decision was made, ‘‘No, let’s not treat it, let’s block the drains, 

store the water in the mine.’’ When it built up, it spilled out. It 

goes downstream. 

Then, Bureau of Reclamation dumps a ton of water downstream 

that should have been available to the tribes to irrigate with and 

to keep water flows such that endangered species can remain 

50 

viable. To me, this looks like a chain of events that was foreseeable 

and avoidable. 

Now, it was the Gold King Mine’s owner that asserted that the 

buildup of water in the mine, when you plugged the drains, was 

a contributor to the blowout. Do you have any reason to disagree 

with that? 

Ms. MCCARTHY. I have a slightly different understanding of the 

history here, and the issues, so I do not want to pick apart the 

issue; but I do think we need to have a conversation about it, because I do not quite see the same history here. 

I do know there have been many decisions. I want you to understand EPA’s role here. We did not participate in decisions about 

who was responsible for what, where blockages should be approved 

or not approved, or what to do with the treatment facility that you 

identified. We came in, simply trying to work with the state and 

the local stakeholders to identify what we could do to alleviate 

problems along the way. 

Mrs. LUMMIS. OK. So now that we know that the Southern Ute 

tribe has already spent at least $170,000 responding to the 

spill—— 

Ms. MCCARTHY. Yes. 

Mrs. LUMMIS [continuing]. Who is going to reimburse them? 

Ms. MCCARTHY. Actually, there are two processes here, and the 

reimbursement process is handled under CERCLA. 

Basically, it is a Memorandum of Agreement we need to reach. 

I was just checking to see if that has been done with the responsible parties who have been helping us. That is a routine reimbursement process that we will be able to take care of. Those 

relationships with both the tribes and the states are fairly routine 

for us, because they act as emergency responders with us. The 

Southern Utes have been incredible, and actually incredibly diligent in being embedded in our Command Center, working on this. 

Their professionalism has been wonderful. So, we are going to 

make sure that they are properly reimbursed for their expenses. 

The second process is the claims process, which is not really a 

reimbursement issue, it is what damages have occurred. We use 

the Federal Claims Tort Act in order to process those claims. 

Mrs. LUMMIS. How does the Federal Tort Claims Act help the 

Navajo? They lost a huge amount of irrigating water, which can 

have long-term devastating effects if drought continues and they do 

not have the water now or in the future. How can they be made 

whole? 

Ms. MCCARTHY. Right. There are two things that are happening 

here, as well. 

One is that we are talking to the Navajo about how they get reimbursed for the work that they have done. It has been extensive, 

as well. We need to work with the President, as well as Navajo 

Nation EPA, to reimburse for their expenses. 

The second issue also is the claims process, if individuals want 

to participate in that process, as well. I want to make sure that we 

are all aware that the reimbursement process is quite different; 

while it is costly, it is easy to do. We have processes in place for 

that. 

51 

The third issue is that we are developing a long-term monitoring 

plan. We need to make sure that that plan allows engagement of 

the tribes, the states, and the counties in that effort; and we need 

to have a stream of funding to support that effort, as well. 

Mrs. LUMMIS. My time has expired. But, Mr. Chairman—might 

I ask that I have an opportunity to meet with you, Director McCarthy, about what you and I perceive as a different—— 

Ms. MCCARTHY. Sure. 

Mrs. LUMMIS [continuing]. Scenario with regard to the cause and 

effect, the chain of events that led to this? 

Ms. MCCARTHY. I will have my staff work with you—— 

Mrs. LUMMIS. Thank you. 

Chairman CHAFFETZ. I thank the gentlewoman. We will now 

recognize the gentleman from Virginia, Mr. Beyer, for 5 minutes. 

Mr. BEYER. Thank you, Mr. Chairman. Administrator McCarthy, 

I would like to thank you for sitting here patiently, and capably 

answering all these questions. I would also like to thank 

Representative Lummis for raising the whole issue of the bulwarks 

and changing the hydrology in the mountain. That seems to be 

what we have missed all along, that water was draining and responsibly being treated. When the bulwarks went in through a consent decree, everything changed; and there is a big problem still 

out there. 

I am just sort of amazed that all these people, all this attention 

to attack the EPA over a completely accidental release of 3 million 

gallons of mined wastewater, when 330 million gallons of acid river 

drainage are flowing into Cement Creek and Animas River every 

year. There were 3 million gallons on August 5, and this same 

watershed gets 3 million gallons every 3 or 4 days. 

We have heard today that there are at least 161,000 hardrock 

abandoned mines around the country. The U.S. Forest Service estimates 5,000–10,000 miles of rivers and streams contaminated with 

acid mine drainage, just from hardrock abandoned mine lands located on USFS lands. It seems to me, the huge elephant in this 

room is all of the water drainage from these mines, not the relatively small spill of only 3 million gallons on August 5. 

The Chairman said this is one of the worst spills we have ever 

had. I am not sure the facts support that claim. In 1975, 50,000 

tons of tailings poured into the Animas River, turning the river the 

color of aluminum paint. In 1978, the Sunnyside Mine, 500 million 

gallons into the Animas—that is 167 times what went in on that 

one day. Those are just the Animas River—just spills all over the 

country. 

We keep coming back to accountability, and I like to look at process. What was the process by which this decision was made? In the 

testimony before, we hear about the EPA and the state of Colorado 

meeting with the Animas River Stakeholders Group. On August 4, 

they began excavation above where water was seeping into the 

adit. What comes back again and again with the Colorado Division 

of Reclamation, Mining and Safety, the EPA, and the contractor, is 

that the mistake was that someone determined that the adit had 

low or no pressure. 

Ms. MCCARTHY. Yes. 

52 

Mr. BEYER. Or, ‘‘the underestimation of the water pressure in the 

Gold King Mine workings is believed to be the most significant factor relating to that blowout.’’ 

Is it going to be possible to identify the person or group of people 

who made that faulty determination? And should they, then, be 

fired, have their pay docked, or be yelled at, or—— 

Ms. MCCARTHY. Well, that—— 

Mr. BEYER. Because that was the heart of the matter. 

Ms. MCCARTHY. That was one of the key findings of our internal 

review, and I am sure that is one of the key areas in which the 

Department of the Interior is going to look. 

What we do know is that same review identified the factors that 

they considered to make a judgment. When I say ‘‘they,’’ it was 

both the Colorado Division of Reclamation, Mining and Safety that 

was with us, making those determinations on the site. They were 

looking at factors that they could see, to see whether or not there 

was pressure buildup at the Gold King Mine, based on that day 

and that evaluation. They made a judgment that turned out to be 

wrong. Whether or not they did due diligence in making that, or 

missed factors that they should have looked at, that is what the 

Department of the Interior is, hopefully, going to be able to advise 

us. 

We will follow up; and they will be held accountable if there were 

mistakes made, if they could have avoided this, if they forgot to 

look at something, or made a judgment that was not based on profound and good engineering and science. 

Mr. BEYER. Thank you. I read the President of the Navajo 

Nation’s long and very detailed testimony to be offered later. I am 

sure you have, too, Madam Administrator. Obviously, he points out 

not just concerns about the 3 million gallons, but how the EPA will 

deal with everything that is coming in the future, and what the 

Navajo Nation, its farmers, and its people will need. 

Is there any reason to think that the August 5 spill was anything 

more than the trigger for all of this attention and partnership between the EPA and the Navajo Nation? 

Ms. MCCARTHY. I think it has raised visibility of these issues in 

a way that I am hoping something good can come out of this, so 

that we will be better off, in terms of how we manage these sites, 

moving forward. But we have been working with the Navajo for 

years, and we will continue to do that. We will address the concerns that they have identified as best we can. 

Mr. BEYER. Because even before the August 5 spill, most of these 

things were just as relevant—— 

Ms. MCCARTHY. They were—— 

Mr. BEYER [continuing]. For their farmers, for their water 

supply, and for the spirituality of their land. 

Ms. MCCARTHY. We now know that the water is at pre-event 

conditions. But that does not mean that the Animas and the San 

Juan are at a point where they need to be, in terms of their water 

quality and the protection of the sediment, so that we are not experiencing these fluctuations that we are seeing now. 

Chairman CHAFFETZ. I thank the gentleman for his time. The 

time has expired. We will now recognize the gentleman from South 

Carolina, Mr. Duncan, for 5 minutes. 

53 

Mr. DUNCAN. Thank you, Mr. Chairman. First off, I think there 

is a clear double standard of how EPA places itself and to how you 

place private enterprises with regard to this. 

The gentleman from Arizona has been a leader on this issue for 

the Natural Resources Committee. I would like to yield the balance 

of my time to him. 

Dr. GOSAR. Ms. McCarthy, in yesterday’s hearing in front of the 

Senate Environment and Public Works Committee, when asked 

whether the government should be held to the same standards as 

it requires of the public and the private sector, you stated that, 

‘‘Actually, a higher standard would be quite appropriate.’’ Do you 

still believe today that a higher standard for government would be 

quite appropriate? 

Ms. MCCARTHY. I do. 

Dr. GOSAR. Thank you. I appreciate it. 

Ms. MCCARTHY. We have a public responsibility that is larger 

than what I think the private sector has, yes. 

Dr. GOSAR. I would like to highlight and submit for the record 

a Wall Street Journal article from September 9 written by a former 

EPA employee. In the article, Bill Wehrum states, ‘‘a facility in 

Charleston, West Virginia, accidentally spilled roughly 

7,500 gallons of toxic chemicals into the local waterway. The EPA’s 

recent discharge of toxic water in Colorado was many times larger. 

Yet the Agency went after the company with everything it had.’’ 

[The information follows:] 

THE WALL STREET JOURNAL 

Opinion/Commentary 

Salvaging a Lesson From the Animas River Spill 

By Bill Wehrum 

September 9, 2015 

http://www.wsj.com/articles/salvaging-a-lesson-from-the-animas-river-spill-1441841582 

The EPA employees at fault won’t face criminal charges. Neither should companies 

that make similar mistakes. 

The Animas River disaster in Colorado is looking worse and worse for the 

Environmental Protection Agency. On Wednesday, EPA officials faced grilling from 

a congressional committee for the Agency’s Aug. 5 spill of three million gallons of 

toxic wastewater into a tributary of the Animas during the cleanup of an abandoned 

mine near Silverton, Colo. On Aug. 24, the Agency released the findings of an 


96242.015.eps
54 

internal investigation that found its staff had failed to accurately gauge the water 

pressure within the mine, thus increasing the chances for a ‘‘blowout’’ like the one 

that occurred. 

All this came after reports that the EPA had known for more than a year that 

cleaning up the mine was highly risky. As Rep. Lamar Smith (R., Texas), chairman 

of the House Committee on Science, Space and Technology, asked in Wednesday’s 

hearing: ‘‘Why did the EPA ignore these obvious warnings? ’’ 

Such revelations have intensified criticism of the EPA’s handling of the spill. Highprofile politicians, including former Speaker of the House Newt Gingrich, have even 

called for criminal charges against the Agency and the employees at fault. Yet federal law protects them from any such action. America will have to settle for EPA 

Administrator Gina McCarthy’s statement that she is ‘‘absolutely, deeply sorry this 

ever happened.’’ 

As a former EPA official, I believe the Agency and the individuals responsible 

shouldn’t be prosecuted for the accident. But I also believe this episode brings needed attention to a serious problem with how the EPA conducts business: The Agency 

often criminalizes actions that are nothing more than accidents, many far less damaging to the environment than the Animas River disaster. Such treatment is unjust. 

There are many examples. Consider last year’s Elk River chemical spill. In January 

2014, a Freedom Industries Inc. facility in Charleston, W. Va., accidentally spilled 

roughly 7,500 gallons of toxic chemicals into the local waterway. The EPA’s recent 

discharge of toxic water in Colorado was many times larger. Yet the Agency went 

after the company with everything it had. 

The EPA quickly dispatched an agent from its Criminal Investigation Division to 

West Virginia. Working with the FBI and a local U.S. attorney, the EPA built a case 

that resulted in criminal indictments for Freedom Industries and six of its employees. All pleaded guilty in connection with negligent discharge under the Clean 

Water Act and currently await sentencing, which could involve varying prison 

sentences. 

Companies and employees who willfully commit a crime should be prosecuted. But 

criminal liability for negligence isn’t appropriate because, by definition, a negligent 

act isn’t done with intent. That doesn’t mean that negligent acts should go 

unpunished. There is ample authority for fines and other appropriate relief to be 

imposed under civil law. Criminal liability should be reserved for those who intend 

to break the law. 

Yet under the Clean Water Act and numerous other laws enforced by the EPA, 

accidents like the Elk River chemical spill are criminally punishable. In that sense 

many environmental laws and regulations with criminal penalties suffer from a 

problem common in the rest of criminal code—a lack of intent requirement. 

There is no indication that any of Freedom Industries’ employees intended to cause 

the spill. The company declared bankruptcy within days of the accident, 11 months 

before the federal government announced its criminal prosecution. (One employee 

is being criminally prosecuted for bankruptcy fraud, which isn’t related to the spill.) 

The company also suffered from civil lawsuits from area residents, the costs associated with the post-spill cleanup, and the inevitable public-relations disaster that 

accompanies such debacles. 

In other words, the criminal charges related to the spill added insult to an already 

debilitating injury. They satisfied calls for vengeance but failed to serve the cause 

of justice. 

Criminal prosecutions aren’t restricted to major, headline-grabbing disasters. Take 

the 1999 prosecution of Edward Hanousek. He oversaw a quarrying project for 

Pacific & Arctic Railway and Navigation Company in Alaska where a backhoe accidentally struck a pipeline, sending up to 1,500 gallons of oil gushing into nearby 

Skagway River. Though Hanousek was off-duty and wasn’t operating the backhoe, 

he was criminally charged and sentenced to six months in prison because his 

contract said he was responsible for safety at the site. 

There is also the 2011 prosecution of Lawrence Lewis. Upon finding sewage flooding 

a military retirement home in the Washington, D.C., metro area, he diverted the 

flow into a storm drain that—unbeknown to him—discharged into the Potomac 

River. He was charged and pleaded guilty to a crime under the Clean Water Act. 

The list goes on. The lesson is clear: People can have their lives ruined for something that, in Gina McCarthy’s words, they are ‘‘absolutely, deeply sorry’’ for and 

never meant to do. 

The EPA accidentally released three million gallons of toxic water into one of 

America’s most scenic river systems. Thanks to federal law, the employees at fault 

55 

will never face criminal prosecution or jail time for their mistake—nor should they. 

But neither should the companies and individuals who make similar mistakes during their work. What’s just for the EPA surely is just for those it regulates. 

Dr. GOSAR. Should the Department of Justice or an independent 

investigator go after the EPA with everything it has? 

Ms. MCCARTHY. When we get the final report to understand 

what happened, I would expect DOJ to pay attention to that, and 

I will pay attention to it, as well. 

Dr. GOSAR. Would the Inspector Generals be involved in that—— 

Ms. MCCARTHY. The Inspector General is also looking at doing 

an independent review, yes. 

Dr. GOSAR. Former EPA employee, Wehrum, also references an 

incident that occurred during the Clinton administration, where a 

railroad supervisor overseeing a quarry project hired a contractor 

who accidentally struck a pipeline with a backhoe and contaminated about 1,500 gallons of river water. While the supervisor, 

Hanousek, was off-duty at the time of the incident, and had subcontracted the work, the EPA pursued criminal charges against 

him. He was sentenced to 6 months in prison because he was ultimately responsible for the safety on the site. 

You have said that the EPA and you are ultimately responsible 

for this spill, and you take personal responsibility of this incident, 

correct? 

Ms. MCCARTHY. Sir, the only correction I would make is that the 

Department of Justice is the one that pursues criminal actions. 

Dr. GOSAR. OK, OK. Since you believe in parity and a higher 

standard for government, should someone from the EPA go to jail 

for this incident, then? We are making apples to apples—— 

Ms. MCCARTHY. I am not at all aware that there is negligence, 

or that we did not do due diligence. Those are the things that the 

Department of the Interior would indicate—— 

Dr. GOSAR. I would beg to differ. I mean, we knew there was a 

problem here, and we should have alerted everybody along these 

lines. 

Ms. MCCARTHY. I just do not—— 

Dr. GOSAR. I think the Chairman of the—— 

Ms. MCCARTHY [continuing]. Know what precipitated—— 

Dr. GOSAR [continuing]. Committee, from that standpoint. 

Ms. MCCARTHY. I just do not know yet. 

Dr. GOSAR. What actions would the EPA take against a private 

company who was responsible for a spill of this magnitude? 

Ms. MCCARTHY. We actually would be doing exactly the same 

thing with that company at this stage, looking to independently 

identify whether or not there was any negligent or criminal activity 

that led to this. That is exactly the same process we are going 

through today. 

Dr. GOSAR. OK. When the spill was reported to the National 

Response Center at 12:27 on August 5, the caller repeatedly emphasized how important it was to notify downstream users who 

would be affected by the contaminated plume headed toward them. 

The message was relayed to the EPA. 

56 

Why is it that the state of New Mexico, the Southern Ute tribe, 

and the Navajo Nation all found out about this spill from other 

sources, not the EPA, who caused the incident in the first place? 

Ms. MCCARTHY. It was part of our contingency plan that we 

always use—— 

Dr. GOSAR. Really? 

Ms. MCCARTHY [continuing]. To take advantage of local information, so that there is appropriate notification. Whether or not it 

was as quick as it could be, I do not know; but that was an appropriate way in which to notify. 

Dr. GOSAR. Well, so you were notified. How hard would it be to 

pick up the phone? 

Ms. MCCARTHY. Well, we have a whole stream. It is not us 

individually deciding who to call. There is a contingency plan for 

notification that is developed with the states, with the local communities, and that is what we initiate. 

Dr. GOSAR. OK. 

Ms. MCCARTHY. This is not done on the fly. This is a plan that 

was developed with everybody’s input—— 

Dr. GOSAR. Well, obviously, as a CEO, it failed. It failed miserably. It was way delayed. You have representatives that will testify 

to that—the Navajo Nation, the Utes. 

I want to, first, move forward a little bit. This lack of trust that 

is now being instilled within the tribes—how can we expect states 

and tribes to have trust and faith in your agency to clean up this 

mess, if they cannot rely simply on being informed of what is going 

on? You talked about collaboration, but it shows very poor respect. 

I want to ask one more question before you answer, because I am 

running out of time. 

Ms. MCCARTHY. OK. 

Dr. GOSAR. Why is it so difficult—I know the Southern Utes were 

on there—for tribes and the states to have seats at the table at the 

EPA’s Incident Command Center, having open lines of communication or getting questions answered about health and sediment impacts? Because I know they are. Well, I look over at the President 

of the Navajo Nation. This could have been dramatically averted. 

So, I want to know why there is so much reluctancy in those 

applications? 

Ms. MCCARTHY. Actually, there is no reluctance to have the 

tribes involved to the extent that they want to. They actually were 

involved in our Incident Command Center. The Southern Utes 

were there and embedded. We had—— 

Dr. GOSAR. And the Navajo? 

Ms. MCCARTHY [continuing]. Eleven people embedded in their 

Incident Command Center and other activities in the tribe—— 

Dr. GOSAR. Something seriously went wrong in this application; 

and, as a CEO, I hope that you would review that. Thank you. 

Ms. MCCARTHY. Thank you, sir. 

Chairman BISHOP [presiding]. All right. We are now under 

Resource rules, which means we have a second panel that has been 

sitting for 2 hours, waiting to be heard. 

We are going to move this quickly through, which means your 5 

minutes, I am going to gavel you down at the end of it. For your 

57 

answers, if it comes to 5 minutes and you are in the middle of a 

sentence, I am going to stop you. 

For the rest of you Members, do not wait until there are 

10 seconds left before you ask her a question. Give her a fair 

chance to do this. 

But we are going to keep the 5-minute rule and get along, so we 

can get the other panel in here. 

Delegate Norton, you are next up for 5 minutes. 

Ms. NORTON. Thank you, Mr. Chairman. 

Actually, I can see something beneficial that came out of this 

tragic accident. And, of course, you have taken responsibility. I congratulate you on the rapid cleanup. It should not have happened 

in the first place, but the benefit that has come is that it has 

focused us on mine leaking. I would ask the Chairman to put into 

the record an editorial from The Salt Lake Tribune entitled, 

‘‘Editorial: Chaffetz, Bishop owe us real answers on EPA failure, 

not another Benghazi.’’ So, your taking responsibility is very important. Perhaps it is a model for what ought to happen here. 

I understand that, while there is no Federal Government data, 

there may be as many as 500,000 abandoned mines. Are they orphans out there, nobody takes responsibility for them? The state? 

The Federal Government? Nobody? Is that the case? 

Ms. MCCARTHY. The state and Federal Government do the best 

they can, but even we do not know where many of these mines are 

located. 

Ms. NORTON. This was in Colorado. I note that in Colorado there 

are three mines listed on something called the National Priorities 

List. 

Ms. MCCARTHY. Yes. 

Ms. NORTON. Does this mean that those mines pose a risk, as we 

speak, for leakage? 

Ms. MCCARTHY. The reason it is on the National Priorities List— 

which you might think of as the Superfund list—is that it—— 

Ms. NORTON. Yes, and I do not understand why this is not 

covered by the Superfund. 

Ms. MCCARTHY. Well, there has been discussion about whether 

it should be on the National Priorities List. President Begaye has 

written to me, and I will take that letter very seriously. 

There have been discussions. Up until 2005, there was a good opportunity to clean this up, and it was going in the right 

direction—— 

Ms. NORTON. Ms. McCarthy, I need to know whether this acid 

mine pollution with this half million or so mines poses any danger 

to drinking water or to fish and other wildlife. 

Ms. MCCARTHY. I would have to say, throughout the country, 

there are many instances in which we are looking at sites on the 

National Priorities List which do pose significant hazard, yes. 

Ms. NORTON. Including drinking water? 

Ms. MCCARTHY. Correct. 

Ms. NORTON. We could have some of this leakage into the 

drinking water of the American people? 

Ms. MCCARTHY. That is a continual threat from many of—— 

Ms. NORTON. But we do not have any way of knowing that until 

it is there? 

58 

Ms. MCCARTHY. On the National Priorities List, EPA is responsible for monitoring those sites, and for taking action if the responsible party is not. So, we are monitoring those. The concern I think 

I have more is—— 

Ms. NORTON. After you monitor, can you make—— 

Ms. MCCARTHY [continuing]. Those that are not on the list. 

Ms. NORTON. Can you then alert or make somebody do 

something about it? 

Ms. MCCARTHY. Yes. 

Ms. NORTON. Who does something about it? 

Ms. MCCARTHY. It is either the responsible party or EPA. 

Ms. NORTON. Or EPA? 

Ms. MCCARTHY. That is correct. But we only have a small 

fraction of the mines on the National Priorities List. 

Ms. NORTON. What do you do to get on that list? 

Ms. MCCARTHY. It has to be called to our attention. We have to 

do a site assessment. We have to consult and confer with the 

governor in the site, or the leadership in the tribes, in order to 

have it on the National Priorities List; and we have to make a decision that is very process-oriented and public, to get them on a site 

and to allow us to then spend Federal and state dollars on a more 

full and rich cleanup. 

Ms. NORTON. Well, I see the ball is in our court on that. I thank 

you very much, Mr. Chairman. 

The CHAIRMAN. Thank you. We will now turn to Mr. Meadows. 

Mr. MEADOWS. Thank you, Mr. Chairman. Ms. McCarthy, good 

to see you again. 

Ms. MCCARTHY. You too, sir. 

Mr. MEADOWS. I want you, if you would, to clear up something 

for me. Chairman Bishop, when he asked you about why you did 

not notify the Fish and Wildlife, your testimony was that you did 

not anticipate a discharge, so there was no notification. 

Then, upon further questioning from Mr. Fleming about an unrelated, you said that a discharge was imminent, that you believed 

that it was going to happen. 

So, which is it, your testimony to Mr. Bishop or your testimony 

to Mr. Fleming? Because they seem to conflict. 

Ms. MCCARTHY. Well, let me try to be a little clearer; I apologize 

if I have not been. 

We were there because concern was raised that there was pressurized water in the mine, in that adit, and that it might result 

in a blowout. That is the reason we were doing the work, to try to 

alleviate that pressure. The actions we were taking were certainly 

not intended to cause the blowout, and the actual professional opinion of those on the site was that that would not happen. 

Mr. MEADOWS. All right. Let me go a little bit further then, 

because any time you do any kind of work, there is a plan. 

Ms. MCCARTHY. There is. 

Mr. MEADOWS. Who approved the plan? EPA? Don’t you approve 

the plans? 

Ms. MCCARTHY. Essentially, that is what we—— 

Mr. MEADOWS. Well, I am troubled, because I looked at that 

video, and I am very familiar with 402 permits. I have been there, 

done that. 

59 

Ms. MCCARTHY. Unfortunately, yes. 

Mr. MEADOWS. It does not even seem like you followed your own 

guidelines that would be applied to the private sector. I did not see 

any of those there. Did you intentionally avoid your own 

guidelines? 

Ms. MCCARTHY. There were plans. One—there was a plan. It was 

developed by—— 

Mr. MEADOWS. Did you follow 402 general guidelines? 

Ms. MCCARTHY. We actually, I believe, followed all permits. But 

what—— 

Mr. MEADOWS. Now, I did not ask—I said 402 guidelines. That 

is a specific question. 

Ms. MCCARTHY. Yes, I do believe we did, because we were 

actually not—— 

Mr. MEADOWS. So, where was the retention—where was all—— 

Ms. MCCARTHY. There was actually a retention pond that was 

constructed. There was one—— 

Mr. MEADOWS. So the retention pond was behind the truck? 

Ms. MCCARTHY. No, actually—— 

Mr. MEADOWS. Because I saw the video. It started flowing to the 

truck. 

Ms. MCCARTHY. No, no—— 

Mr. MEADOWS. Where is the retention pond? 

Ms. MCCARTHY. The retention pond was constructed in a way 

that would have managed the anticipated release. That was our anticipated release we were trying to generate in order to relieve the 

pressure. Because it was a blowout, that treatment pond was clearly inundated very quickly. 

Mr. MEADOWS. Yes, but, Ms. McCarthy, listen. You are talking 

to somebody who has done this. Normally what you have are multiple retention ponds, in case of a blowout. I know that I have had 

to construct them. So, you anticipate worst-case scenarios. It does 

not look like you anticipated worst-case scenarios. It looked like 

you kind of cut some corners to try to get it done, and you had a 

truck there working on it. 

Ms. MCCARTHY. This was one of the issues that the internal 

review raised, as to whether or not the emergency plan was 

adequate. 

Mr. MEADOWS. What is your opinion on that? Was it adequate? 

Your opinion. I am not asking—— 

Ms. MCCARTHY. Well, that—— 

Mr. MEADOWS. Was it adequate? 

Ms. MCCARTHY. The internal review clearly pointed out that—— 

Mr. MEADOWS. That it was not adequate. 

Ms. MCCARTHY [continuing]. What they saw was not adequate. 

Mr. MEADOWS. OK. So let me—— 

Ms. MCCARTHY. What they saw. 

Mr. MEADOWS [continuing]. Finish—— 

Ms. MCCARTHY. I do not know what else is there. But, I honestly 

think we have to look at the Department of the Interior—— 

Mr. MEADOWS. OK. Why do we have to look at the Department 

of the Interior? You keep coming back to that as this 

independent—— 

Ms. MCCARTHY. That is right. 

60 

Mr. MEADOWS [continuing]. Agency. 

Ms. MCCARTHY. Yes. 

Mr. MEADOWS. Well, it is part of the Administration, so I hardly 

see the DOI being independent, necessarily, the way that we would 

think of independent. So why not the Inspector General? 

Ms. MCCARTHY. The Inspector General is looking at this issue. 

Mr. MEADOWS. But why would they not have—— 

Ms. MCCARTHY. I think if we go to—— 

Mr. MEADOWS. Why would they not have the main authority, the 

Inspector General for the EPA? 

Ms. MCCARTHY. They are going to be looking at this, but—— 

Mr. MEADOWS. Why would they not have the main authority? 

Ms. MCCARTHY [continuing]. We are going with the agencies that 

have significant expertise, it is the Department of the Interior, the 

Army Corps. 

One of the things we did was to make sure that we were not 

defining the scope of work—— 

Mr. MEADOWS. So who decided who is going to inspect who? Did 

you decide who is going to be independent? 

Ms. MCCARTHY. No, I left that up to staff and others—— 

Mr. MEADOWS. But your agency decided who was going to be 

independent? 

Ms. MCCARTHY. We actually consulted with a number of 

agencies. Those agencies agreed to do it. They have—— 

Mr. MEADOWS. Can you get those documents to the committee, 

in terms of those inquiries that were made, in terms of who would 

be best? Because, obviously, if you made multiple inquiries, you 

have data and emails to back that up. 

Ms. MCCARTHY. I certainly can see what we have available, if 

that is the request. But we did try to—— 

Mr. MEADOWS. I would ask that you—— 

Ms. MCCARTHY [continuing]. Get authorities to actually look at 

this that would have the expertise to be able to do an independent 

review. 

Mr. MEADOWS. If you would, get that to the committee. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you. Under 5 minutes. Well done. 

Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman; and for both of the 

Chairmen, thank you for having this hearing. 

Ms. McCarthy, it is probably no secret to you that tens of millions of Americans fear the EPA, despise it, and even hate it. Many 

of them are in my district. One of the reasons many Americans feel 

this way is the high-handed and arrogant way that the EPA operates. It is constantly moving the goal posts of environmental 

standards. 

In many, if not all, of these cases, the existing standards are already quite stringent, and have been complied with at great expense on the part of taxpayers or the private sector. To ignore the 

high economic cost of further tightening of standards shows a disregard for the difficulties that many everyday Americans face in 

putting food on the table without having to pay higher prices for 

energy or losing jobs because of the higher cost of regulation to 

business. 

61 

My state of Colorado, for instance, is currently being forced to 

sue the EPA to avoid the ill-considered Clean Energy Plan, which 

has an extremely high cost for little or no environmental benefit. 

Now, the arrogance of the EPA is seen by its reaction in the 

aftermath of the horrible environmental disaster in Colorado that 

we are here to discuss and investigate today. No one has been punished, and the EPA is seeking to avoid any hit on its budget for 

judgments against it resulting from this disaster. It wants other 

parts of the Federal Government to pay any judgments. 

So, this, to me, Ms. McCarthy, is a double standard; because, had 

the private sector caused the environmental tragedy in Colorado, 

there would be serious fines and possible criminal penalties. 

This brings me to my first question. In light of the perceived double standard that the EPA operates under, where the private sector 

is not allowed to use its own science and come to its own conclusions unquestioned, would you support legislation by Congress that 

would require the EPA to disclose to the American people online 

whatever science it uses to form its judgments? 

Ms. MCCARTHY. Sir, I am not prepared to talk in the big picture 

about what we would support or not support. I am here to tell you 

that we have taken full responsibility for this issue. We are treating us the same way we would be treating the private sector. And 

you are absolutely right, we enforce our statutes; that is what 

brings the public health and environmental protections and benefits that people rely on in this country. And I believe they will continue to rely on our ability to deliver those. 

Mr. LAMBORN. A private company would have to absorb a fine 

assessed by the EPA from its budget. You are seeking to have—— 

Ms. MCCARTHY. Not in this consequence. This was actually a 

response action to try to mitigate a danger that was pointed out 

to us. The challenge for the private sector would be the same as 

us: make sure that, if an accident happened at that site, that they 

get people out and keep them safe, that they reduce the spill 

quickly, and they take account and accountability for all of the 

damage that it caused. 

Mr. LAMBORN. So a private company—— 

Ms. MCCARTHY. That is exactly what we are doing. 

Mr. LAMBORN. A private company would not have been fined? 

Ms. MCCARTHY. Only if—— 

Mr. LAMBORN. If they were acting in good faith? 

Ms. MCCARTHY. Only if the actions they were taking were 

against an order or a settlement, or someone was found negligent 

or criminal in the activities. 

And those last two issues are what the Department of the 

Interior will help inform. If we were negligent, if we did not do 

what we should have done, if we did not do due diligence, then we 

will have to be held accountable for that, as well. 

Mr. LAMBORN. In the meantime, let me ask you this about the 

contractor. 

Ms. MCCARTHY. Yes. 

Mr. LAMBORN. Is the contractor being suspended from further 

work on mines until the results of the investigation come back? 

Ms. MCCARTHY. No, sir, because the contractor was working 

under the direct supervision of our on-site coordinator. It is my unVerDate Mar 15 2010 08:36 Jun 15, 2016 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\FULL COMMITTEE\09-17-15 JOINT\96242.TXT DARLEN
62 

derstanding that, at this point, we do not have any reason to believe that he was not doing the work that he was tasked to do. 

Mr. LAMBORN. So it was the EPA director’s fault for—— 

Ms. MCCARTHY. I am not sure where fault lies. That is what the 

Department of the Interior is going to identify. The question is the 

key decision that was made—there was the understanding based 

on the site conditions—and this was the experts from us and 

Colorado—that there was low or no pressure. That was the key decision. It was not the fact that he did the work the way the task 

order indicated. It was the fact that a determination was made 

that proved to be incorrect. 

Mr. LAMBORN. Thank you. 

The CHAIRMAN. Thank you. Mr. Hice. 

Dr. HICE. Thank you, Mr. Chairman, for having this hearing 

today. I would like to pick up where Mr. Lamborn was. 

You just said that if a private company did what they should 

have done, there would be no problem. What I would submit to you 

likewise, that if the EPA had done what they should have done, we 

would not have had this spill. So, there ought to be equal consequences for the EPA, just as there are to private citizens. I cannot believe for one minute that the EPA would not aggressively go 

after another group, another company, a private company who was 

involved in cleaning up a potential environmental hazard; particularly if they did not have the experience and expertise of doing so, 

and they created a problem such as the EPA created. You would 

go after them, and there would be heads rolling, so to speak. 

Yet, that is precisely what the EPA is now guilty of. To this 

point, nothing at all has happened. You said you are treating yourself, the EPA, the same as you do other companies. Quite frankly, 

that is just not the case. 

Have you read the summary report of the internal review of the 

blowout? 

Ms. MCCARTHY. Yes, I have, sir. 

Dr. HICE. OK. You may recall on page 2, the last sentence there. 

It says, ‘‘The team conducted a limited review of Internet resources 

to determine if there are existing guidelines or procedures for investigating sites with similar characteristics as this site.’’ 

Obviously, the EPA does not have experience in cleaning up 

mines such as this. They had to refer to the Internet. The expertise, apparently, is restricted to Google. Is that correct? 

Ms. MCCARTHY. I will have to look at the exact sentence you are 

reading. But the on-scene coordinator has extensive mining engineering expertise, and we worked with the Colorado Division of 

Reclamation, Mining and Safety, who have considerable expertise 

as well, including—— 

Dr. HICE. Well, according to your own—— 

Ms. MCCARTHY [continuing]. Expertise in that area. 

Dr. HICE. According to the report, the summary review, EPA relied upon ‘‘Internet resources’’ to figure out what to do in this 

scenario, and that is according to what you have submitted. 

Let me ask you this. According to the Federal Tort Claims Act, 

are you familiar with the discretionary function exemption? 

Ms. MCCARTHY. No, sir. 

63 

Dr. HICE. That is a legal loophole within the law that would 

allow the EPA to get out of having to pay for any damages. My 

question to you was whether or not the EPA plans to utilize that 

exemption? But, you are saying you are not familiar with it. 

Ms. MCCARTHY. I am not an expert in the claims process, I 

apologize. If we need to answer your questions in more detail—— 

Dr. HICE. OK. Then, my question to you is—that is a legal loophole in the law; will you commit to us today that the EPA will not 

utilize that loophole, and that you will pay for damages? 

Ms. MCCARTHY. We will work with DOJ to compensate, as 

appropriate. I do not—— 

Dr. HICE. Will you not utilize—— 

Ms. MCCARTHY. I cannot concur that I—— 

Dr. HICE. Will you not utilize a legal loophole to get out of it? 

Ms. MCCARTHY. I cannot say that I will do something against the 

law. I am sorry, sir, I cannot do that. But I will follow up—— 

Dr. HICE. No, this is in the law. I just do not want the EPA 

utilizing a loophole to get out of what you are responsible—— 

Ms. MCCARTHY. I am not going to try to get out of any of my 

responsibilities. 

Dr. HICE. OK. Are you familiar with Greensboro, Georgia, in my 

district, there was a similar experience about 6 months ago, where 

the EPA likewise had a contractor that made a mistake. They 

struck a water main; and lead, arsenic, mercury, and all sorts of 

things went into the Oconee River and Lake. Are you familiar with 

that? 

Ms. MCCARTHY. I do not recall it. 

Dr. HICE. It is another example of the EPA having a similar 

problem. And, Mr. Chairman, I would like unanimous consent for 

this Fox News report to be added to the record. 

The CHAIRMAN. Without objection. 

[The information follows:] 

FOXNEWS.com 

Before Colorado mine disaster, EPA project caused spill in Georgia 

Published August 20, 2015/watchdog.org 

Still reeling from a disaster it created at a Colorado gold mine, the EPA has so far 

avoided criticism for a similar toxic waste spill in Georgia. 

In Greensboro, EPA-funded contractors grading a toxic 19th-century cotton mill site 

struck a water main, sending the deadly sediment into a nearby creek. Though that 

accident took place five months ago, the hazard continues as heavy storms—one hit 

the area Tuesday—wash more soil into the creek. 

The sediment flows carry dangerous mercury, lead, arsenic and chromium downstream to the tourist destination of Lake Oconee, which then feeds into Oconee 

River—home to many federally and state protected species. 

Lead in the soil is 20,000 times higher than federal levels established for drinking 

water, said microbiologist Dave Lewis, who was a top-level scientist during 31 years 

at the Environmental Protection Agency. 

He became a whistleblower critical of EPA practices and now works for Focus for 

Health, a nonprofit that researches disease triggers. 

64 

‘‘Clearly, the site is a major hazardous chemical waste dump, which contains many 

of the most dangerous chemical pollutants regulated by the EPA,’’ Lewis wrote in 

a 2014 affidavit for a court case filed by local residents that failed to prevent the 

EPA project: creating a low-income housing development. 

URL: http://www.foxnews.com/politics/2015/08/20/before-colorado-mine-disaster-epaproject-caused-spill-in-georgia/ 

Dr. HICE. Thank you, sir. I would just conclude, because I know 

we are in a hurry here. You have stated that you are taking full 

responsibility for this spill. In light of the criminal charges, the 

prison sentences, and the incredible fines that others have experienced for much less—and many of those examples have been 

brought forth today, much smaller accidents—Ms. McCarthy, in the 

interest of fairness to the American people who have experienced 

the wrath of the EPA for much smaller scenarios and accidents 

than this, I think it is only appropriate that you would resign as 

a statement of fairness for what other Americans have experienced 

for much smaller incidents. 

Mr. Chairman, I thank you. With that, I yield back. 

The CHAIRMAN. Yields back. Mr. LaMalfa. 

Mr. LAMALFA. Thank you, Mr. Chairman. I appreciate you, Mr. 

Chairman and Chairman Chaffetz, for having this hearing and allowing Natural Resources to be part of the committee. Thank you, 

Ms. McCarthy, for making the trip today. 

Several things I am looking at—well, first of all, when I look at 

how people have to deal with their government and their regulations, is proportionality. We know what an accident is—how that 

is defined. It is when something happens that is out of their control, that they did not intend to do, that they did not want to have 

happen, and probably wish they could have headed off somehow. 

But that said, accidents do happen; we forgive people for accidents. 

Yet, we see an unforgiveness attitude coming from your agency 

with people that have not done things intentionally. When we talk 

about proportion, for example—coming back to that West Virginia 

mine spill, where it was 7,500 gallons of water, that people faced 

criminal indictments immediately, and could end up in prison. The 

company is out of business. 

But in this case here, with 3 million gallons being dumped when 

other activities should have been taken ahead of time, that is 400 

times the amount of pollutant that got out. You know? Basically, 

we are talking about one company the size of a small backyard 

dough boy pool versus 400 of those types of pools in this. The proportion for the criminal charges for them versus what has been 

brought upon either your contractor or the people in your organization, should we have a 400 multiplier for prison time being charged 

against some of your employees or your contractor? 

Ms. MCCARTHY. The West Virginia spill ended up actually 

contaminating drinking water supplies for many people. It caused 

significant concern, and it was done by a company that was not following the law in their requirements. That is why that was 

pursued. 

In this instance, I am not saying that the 3 million gallon spill 

did no damage. Clearly, you will hear that damage happened, 

whether or not it was physical or not. The difference here is that 

65 

when there is an accident, you have to determine whether somebody was doing the things they should have been doing and an accident occurred that they could not have anticipated, or whether 

there is fault and blame. That is what we are trying to determine 

with the independent review, and we will follow wherever that 

goes. 

Mr. LAMALFA. In the case of your organization, once again, a 

question earlier was posed. If you have a project in anticipation of 

a possible blowout—which you admit to in your documents, that it 

was very, very possible of a blowout—that you should have been 

notifying Fish and Wildlife. Therefore, that was a violation of the 

law. 

So, should this committee, should this House, should somebody 

be coming down hard on your agency and your people for violating 

the law and not having that notification; but even more so, some 

of the other measures that could have been taken? You call this a 

pressure situation in that mine, so should have hydrostatic testing 

been made, which is, again, referred to in documents? There is acknowledgment in some of your documents that testing should have 

been done ahead of time, but it was seen as technically challenging, 

or maybe costly. Now, in the end game, this is much more costly, 

brings much more embarrassment upon your agency, and brings 

much damage to the tribes and many people downstream, as well 

as drinking water, like you mentioned a minute ago. 

So, how much should we come after you for not following the law 

and notifying Fish and Wildlife, but as well as not even following 

what your own documents show—that you should have had hydrostatic testing, as well as the possibility of putting a relief pipeline, 

drilling that in place, that would relieve the pressure? How hard 

should we come down on you for this? 

Ms. MCCARTHY. I do not believe that the Agency violated the 

Endangered Species Act, and we can continue to look at that and 

talk. The more important thing is—you are absolutely right—if we 

did something wrong, then you should come after us. And, frankly, 

I am going to take full accountability for that, as well. 

Mr. LAMALFA. Again, back to proportionality, my constituents in 

my rural district face a lot of issues from Federal agencies coming 

after them that—somebody trying to change their crop land from 

grazing or a wheat field to an orchard field, because they have to 

prepare the soil differently. They can have somebody on their case 

over their soil preparation with large, large fines. It, indeed, has 

happened. 

Does that seem fair, especially when the people involved have a 

period which they would make an application and they do not hear 

back from the Federal agency; under the law it says they can then 

proceed, and then they come back after that, say, 90-day period? 

Does that seem fair, that they believe they are operating in the 

law, and then they come down upon them? 

Ms. MCCARTHY. Sir, I cannot speak to any particular instance 

that I am unaware of. But I—— 

Mr. LAMALFA. Well, under the Waters of the United States, our 

folks are really, really taking a hit on it. So I thank you for 

your—— 

The CHAIRMAN. Sorry. 

66 

Ms. MCCARTHY. Thank you, sir. 

The CHAIRMAN. Time is out. Follow the law. Next one, Mr. 

Palmer. 

Mr. PALMER. Thank you, Mr. Chairman. Ms. McCarthy, thanks 

for coming again today. 

Five months ago, the EPA sent toxic sediment into a creek in 

Greensboro, Georgia. Initially, EPA denied having anything to do 

with the project, and later admitted that it funded the cleanup and 

the operation that triggered the spill. 

Did you request a Department of the Interior review for that 

spill? 

Ms. MCCARTHY. I am not directly aware of it, sir; so I will have 

to get back to you. 

Mr. PALMER. All right. The record indicates that you did not. It 

makes me wonder why, after an accident like that, that you did not 

stop all of these cleanup efforts, particularly with the Gold King 

Mine, after having a spill in Georgia just a few months ago. 

Let me ask you this. You have been asked several times if anyone at EPA is going to lose their job over this incident. Has anyone 

at Environmental Restoration LLC been fired or disciplined over 

this? And I think you may have answered that. Am I correct—— 

Ms. MCCARTHY. Not that I am aware of. 

Mr. PALMER. Well, am I correct in that you responded earlier 

that you are continuing to use them as a contractor? 

Ms. MCCARTHY. That is correct. 

Mr. PALMER. Also, are you aware that it was reported that EPA 

collected about 15,000 tons of poisonous waste from two Leadville 

mines in 2005, and dumped them down the shaft of the 

New Mikado Mine without notifying the mine owner, who happens 

to be Mr. Hennis, who owns the Gold King Mine; and the EPA did 

not take responsibility for that, and did not assist or pay for the 

cleanup. 

Ms. MCCARTHY. I am not aware of that incident, sir. 

Mr. PALMER. I think you need to look into that, as well. 

One of the things that really concerns me about this—and I 

realize the EPA has a job to do, but I have brought this to your 

attention before about some of the heavy-handed tactics that EPA 

engages in. 

Chairman Bishop, earlier in his questions, talked about the fact 

that the EPA has clearly violated Federal law, that it does not matter that the EPA did not realize that they violated the law, or that 

the EPA did not intend to violate the law, or that the EPA was just 

trying to do its job when it violated the law. That does not matter, 

and I am saying it does not matter in the context of how you have 

treated other folks. 

I think Mr. Gosar brought up the case of Edward Hanousek. He 

was sentenced to 6 months in prison for discharging oil into a navigable stream. He was convicted, despite the fact that he was off 

duty and not present when the accident occurred. 

Lois Alt of West Virginia, she is a poultry farmer. The EPA spotted some feathers and droppings near her chicken houses. Now, 

having grown up on a farm, I am fairly familiar with that. I think 

most people who have been around chicken farms would expect to 

see that. But they told her that she had to get a National Pollution 

67 

Discharge Elimination System permit, or she would be fined 

$37,500 per day. Ms. Alt, true to her native West Virginia spirit, 

is fighting it. 

Andy Johnson from Wyoming has been mentioned. Mr. Johnson 

built a stock pond for his horses and cattle on his 8-acre property— 

a stock pond that a former Army Corps of Engineers enforcement 

officer inspected and concluded that it provided environmental benefits, including approved wildlife habitat, and that the water flowing out of the pond is three times cleaner than the water flowing 

into it; yet Mr. Johnson has been fined $16 million. Now, this is 

just a small farmer. 

Then you have the situation with the Range Resources 

Corporation in Texas, a natural gas company, being forced to spend 

$4.2 million defending itself in 2011, after the EPA issued an emergency order. The EPA accused Range Resources of causing or contributing to the contamination of two water wells. Then, when it 

was quickly determined that they did not have anything to do with 

it, despite the incontrovertible evidence to this fact, EPA claimed 

that it was not required to prove it even alleged any connection between Range Resources and the contamination. You were going to 

continue on that path to force them to pay that, until you finally 

relented and gave that up. 

You also turned over the personal data of 80,000 farmers to 

environmental groups. 

I do not understand why you can come before this committee and 

sit there and say that you are sorry for what you have done in the 

context of how you have treated private companies. You really 

ought to be sorry. 

Mr. Chairman, I yield. 

The CHAIRMAN. Thank you. Mr. Westerman. 

Mr. WESTERMAN. Thank you, Mr. Chairman. Despite efforts to 

try to minimize the significance of this spill, the facts cannot be ignored that 3 million gallons of acidic, heavy metal-laden water 

were released into the Animas River. This was not because of an 

accident; it was because of mistakes made by the EPA, mistakes 

caused by neglect because of a culture of arrogance, where the EPA 

assumes they can operate outside the rules and regulations that 

others must adhere to. 

Quite simply, the EPA did not have those responsible charged 

with the education and professional experience, licensure, and continuing education required to do this job properly to safeguard life, 

health, and property, and to promote general welfare. 

Administrator McCarthy, we cannot put this water back in the 

hole, but I hope we can hold everyone accountable who negligently 

let it out. 

Along with that, I hope you will make procedural changes, taking 

competence out of the equation, and prevent future spills. Under 

current procedures and practices, I have concern in your ability to 

safeguard the public’s interest. 

Administrator McCarthy, do you believe that the activities conducted at the Gold King site would require engineering design 

work? 

Ms. MCCARTHY. I am sorry, sir, I do not know whether I am 

qualified to answer that question, but I will certainly respond—— 

68 

Mr. WESTERMAN. Maybe I can help you out. Colorado defines the 

practice of engineering as the ‘‘performance for others of any professional service or creative work requiring engineering education, 

training, and experience, and the application of special knowledge 

in the mathematical and engineering sciences to such professional 

services or creative work including consultation, investigation, evaluation, planning, design, and the observation of construction to 

evaluate compliance with plans and specifications in connection 

with the utilization of the forces, energies, and materials of nature, 

and the development, production, and functioning of engineering 

processes, apparatus, machines, equipment facilities, structures 

and buildings, works, or utilities, or any combination or aggregations thereof employed in or devoted to public or private enterprises or uses.’’ 

Again, I will ask you. Do you agree activities conducted at the 

Gold King site would require engineering design work? 

Ms. MCCARTHY. I think that I am well aware that there was a 

work plan that involved a significant amount of engineering expertise. What you asked me were the exact actions at the site. I am 

not prepared to answer that portion of the question. 

Mr. WESTERMAN. So, you are saying you cannot—— 

Ms. MCCARTHY. Clearly—— 

Mr. WESTERMAN. You do not have the expertise to determine 

whether professional services were required there; but you did say 

in your earlier testimony that the on-site coordinator had significant mine engineering experience. And you did say that engineering expertise—— 

Ms. MCCARTHY. That is my understanding—— 

Mr. WESTERMAN [continuing]. Went into preparing this work 

plan. 

Ms. MCCARTHY. Yes, that is correct. 

Mr. WESTERMAN. Colorado law also further goes on to say that 

it requires that ‘‘only a professional engineer may practice engineering, and that all engineering documents, plats, and reports 

issued in connection with engineering work performed must bear 

the seal and signature of a Colorado-licensed professional engineer 

who is in responsible charge of, and directly responsible for, the engineering work.’’ 

Did a professional engineer design or stamp drawings or the plan 

for the work being conducted at the Gold King site which resulted 

in the blowout? 

Ms. MCCARTHY. I am happy to follow up on that. I cannot answer 

that—— 

Mr. WESTERMAN. I would think that, if an engineer did that, if 

you contracted those services, or if you had someone on staff to do 

that, that you would have those documents with you, and say, ‘‘We 

followed the procedures that were outlined by a competent professional in charge of this.’’ So far, all I have heard is that you had 

a project coordinator overseeing work at this site. Who is this 

person? 

Ms. MCCARTHY. I do not have his individual name, sir. 

Mr. WESTERMAN. Do you know what their credentials are? 

Ms. MCCARTHY. I do not have his bio in front of me, sir, but I 

do know that the work plan itself was not developed at the site. 

69 

It was developed with the state of Colorado after significant public 

input from the Animas River Stakeholder—— 

Mr. WESTERMAN. Well, public input and professional expertise 

are not the same thing. This is a serious matter that you should 

have had a professional design person in charge of, to stamp these 

plans or drawings or whatever it was that you had—— 

Ms. MCCARTHY. I am not suggesting we did not, but I am suggesting I cannot answer your question at this point, but I am 

happy to follow up. 

Mr. WESTERMAN. In looking at data, you have 15,326 employees 

in the EPA as of March 2015. In Region 8, you have 642. Across 

the country, you only have 12 civil engineers on staff. You have two 

geologists and one civil engineer working in Region 8. 

Ms. MCCARTHY. Wow. 

Mr. WESTERMAN. I think this is unacceptable, and I think you 

are at fault for not having the required design professional in 

charge of this work. 

The CHAIRMAN. See what happens when you have an engineer on 

the panel? Ms. Lujan Grisham, you snuck in right on time. You are 

recognized for 5 minutes. 

Ms. LUJAN GRISHAM. Thank you, Mr. Chairman. It is nice to see 

you again. 

I realize this is a difficult hearing, Administrator McCarthy, but 

we all want the same thing: we do not want to have these kinds 

of issues and mistakes going forward 

Quite frankly, I personally appreciate EPA’s attitude about taking full responsibility. But, for the 3 million gallons of toxic—and 

I am sure that everyone has repeated this over and over again— 

into the Animas River and surrounding area. I really want to focus 

my question on making sure that we are as holistic as possible 

about identifying just exactly what the harm is, how we identify 

and address that harm, and how we assess the long-term impacts. 

Specifically—and I hope that President Begaye from the Navajo 

Nation will forgive me for this, because, as he spoke in his 

testimony about the Navajo principle of Ho ́zho ́—it is very important, I think, not to overlook the beauty, order, and harmony of 

these very beautiful, pristine areas. In the legal context, if we do 

not deal with actual damage and future damage, and make it completely whole, then it cannot be available for the kinds of economic 

and personal activities that we know are critical to this entire area 

and region. I know that that is going to be a complicated process, 

to place a monetary damage from this kind of spill that are more— 

traditional damaged crops, suspended outdoor recreation and tourism. I am looking at making sure that we restore the area to its 

original aspect, and the potential that it had prior to the spill. 

Can you talk to me a little bit about how you are going to identify both the long-term impacts that are yet unknown, and about 

how you are going to encompass this Ho ́zho ́, if you might, aspect 

that we are interested in getting full compensation for in this entire region for all the states that are affected? 

Ms. MCCARTHY. Well, there are two long-term issues that we 

need to address. I know time is constrained, so I will try to keep 

this limited. 

70 

We have a long-term responsibility to deal with the sediment 

issue. That has been one of the major concerns of President Begaye 

and the Navajo, which we appreciate, and others, because we know 

that that river has not been of high water quality for some time. 

Sediment has been a concern. We have to monitor that closely. We 

now have a long-term concern about that that we share, and we 

are developing a plan to do that that we will get input from everybody on, so we can address that. So—— 

Ms. LUJAN GRISHAM. So you—oh, I am sorry. 

Ms. MCCARTHY. I am sorry. The second long-term issue is what 

happens in the Upper Animas. We are not close to resolving the 

challenges associated with the ongoing discharge, which, frankly, 

dwarfs the spill we have. We have to address that. 

In terms of looking at this more broadly than a technical challenge, one of the challenges that the Navajo and, frankly, the 

Southern Ute, and others have expressed to us is that we have a 

trust responsibility with the tribes, which makes this more important. We have—— 

Ms. LUJAN GRISHAM. Not only more important—I am going to 

reclaim my time, Administrator—but also there is a culture of 

mistrust. 

Ms. MCCARTHY. Yes. 

Ms. LUJAN GRISHAM. Not just for all trust responsibilities, but a 

specific culture of mistrust between the EPA and our nations. Particularly in this case, I hope, again, I do not overstep my authority 

here, but particularly for the Navajo Nation. 

I am expecting in that plan, Administrator, that you identify 

very specifically monetary aspects and monetary damages related 

to the long-term impacts. While I completely respect that you are 

looking at the continuation of environmental problems—which is 

absolutely your job, and I want you to do that job as effectively as 

you can—I want everybody made whole. And I am not feeling as 

confident about that, particularly. 

In your plan—because I am running out of time—I am going to 

need you to address how individuals process their claims and what 

you are going to do to make that a non-painful process. The unemployment rate of the Navajo Nation is upwards of 42 percent. People cannot wait and wade through a terrible, bureaucratic aspect 

to process, file, and wait for their claims. And to use all of our collective offices—I see my colleague here, Congressman Pearce—to 

try to do the appellate work that I am sure will be necessary to 

get fair review. You have just a few seconds to assure me that we 

are going to do that. 

Ms. MCCARTHY. We will do the best we can. Thank you. 

Ms. LUJAN GRISHAM. Thank you. 

The CHAIRMAN. You can still go for 7 seconds, if you want. I am 

kidding. 

Mr. Newhouse. 

Mr. NEWHOUSE. Thank you, Mr. Chairman. Thank you, 

Administrator, for being here. 

One of the risks of being a freshman is I am right down here in 

the line of fire with you. I just had one question, in light of the 

Chairman’s wanting to get to the other people who have been so 

patiently waiting here. 

71 

Certainly, this is an unfortunate incident, one that we must do 

all we can to prevent from happening again. We need to learn from 

this. But also, the word ‘‘accountability’’ has been thrown around 

a lot this morning. You have said as much yourself, that you will 

follow this wherever it goes, and I appreciate that. 

Could you tell me how do you define the ‘‘accountability’’ here? 

What would that look like in the end? 

Ms. MCCARTHY. Well, there will be accountability in two ways: 

whether or not we had administrative and management failures, or 

whether we had any criminal concerns that arise out of the independent review. Those are two related but separate issues. 

Mr. NEWHOUSE. Well, I can say, having run an agency myself in 

a former life, that I believe the ability of the Agency, and the credibility of the Agency, its ability to perform its duties, is truly on the 

line here. It is as much at risk as anything else. So, I would hope 

that we can take you at your word that the accountability aspect 

of this will be followed to wherever it goes, and that we are satisfied that the people that are in charge are held accountable. 

Ms. MCCARTHY. Well, I know that we have both the Inspector 

General, who looks at these issues, and the Oversight Committee. 

I expect we will be able to walk through the accountability issues 

when all the facts are on the table. 

Mr. NEWHOUSE. Could you tell me a little bit about the protocol 

when the spill happened? Could you talk about what the Agency’s 

first actions were? What are the protocols for this kind of a spill? 

Ms. MCCARTHY. The sequence that we expect from the Agency, 

or anybody in this situation, is, first and foremost, to protect the 

folks that are on the site, to make sure that there is no potential 

for safety issues to arise. 

Then, the second issue is the challenge to minimize the spill as 

much as you can to get that under control. 

And the third is to take a look at the impacts downstream, so 

that you can address those and mitigate those, as well. Then, 

obviously, there is a longer-term challenge of making sure that 

there is appropriate compensation through the Claims Act. In the 

case of EPA, where we had partners working with us, states and 

tribes, to also reimburse them for their expenses. 

Mr. NEWHOUSE. Can you say whether or not these protocols were 

all followed? And were there any, just as importantly, that were 

not followed as well as they should have been? 

Ms. MCCARTHY. I—— 

Mr. NEWHOUSE. Hindsight, I know, is 20/20. 

Ms. MCCARTHY. Yes. I am not aware that we did not follow the 

correct procedures. I am certainly aware that we could have done 

better on notification. I think we will have to learn from those lessons, and we have already started to do that. We will learn from 

whatever DOI says about what caused the incident, what were the 

precipitating factors, and what we need to do about it. 

Unfortunately, sometimes you learn from some of the worst 

things, and this is one of them. 

Mr. NEWHOUSE. I would agree with that. Thank you, Mr. 

Chairman, I yield back my time. 

The CHAIRMAN. We now have three other Members who are not 

a part of our committees who are here to ask questions. 

72 

Mr. Pearce, we will start with you. 

Mr. PEARCE. Thank you, Mr. Chairman. Thanks, Administrator, 

for being here today. 

We had some difference of opinion on whether or not the EPA 

was pushing for these Form 95s to be signed. President Begaye’s 

testimony says that, apparently, EPA was trying to obtain releases 

for members. Since we have a difference of opinion, would you declare here today that any of these forms filled out before today and 

signed maybe unknowingly by members of the Navajo Nation 

would simply be disallowed, and they would be allowed to resubmit 

that paperwork? 

Ms. MCCARTHY. Those can be changed at any point in time. 

Mr. PEARCE. OK. 

Ms. MCCARTHY. I am unaware that they have been 

submitted—— 

Mr. PEARCE. All right. 

Ms. MCCARTHY [continuing]. But we have been working to 

explain the form—— 

Mr. PEARCE. OK, all right, sounds great. 

Ms. MCCARTHY [continuing]. And how to do that—— 

Mr. PEARCE. Also, in order to dilute down the spill, 1.3 billion 

gallons of water was dumped that belongs to the Navajo Nation. 

Are you going to reimburse that?—1.3 billions of gallons of water 

into Mexico is a big deal. 

Ms. MCCARTHY. I do not know what you are referring to. I am 

sorry, sir. 

Mr. PEARCE. OK. I would expect, then, for you to look into 

that—— 

Ms. MCCARTHY. OK, sure. 

Mr. PEARCE [continuing]. And get back with our office. That 

water was released in order to dilute—— 

Ms. MCCARTHY. Oh, the water released at the dam. 

Mr. PEARCE. Yes. So now you are familiar? 

Ms. MCCARTHY. Well, I did not know what you were referring to. 

Mr. PEARCE. OK. 

Ms. MCCARTHY. I am aware that that happened. 

Mr. PEARCE. Are you going to be reimbursing the tribe for that? 

Ms. MCCARTHY. I do not know whether that is something 

that—— 

Mr. PEARCE. You are going to follow up and find out—— 

Ms. MCCARTHY. The Navajo has not raised that issue with me, 

so, I will find out what—— 

Mr. PEARCE. OK. It would be practical to understand that. 

Ms. MCCARTHY. OK. 

Mr. PEARCE. Also, to Chairman Bishop’s point earlier that we 

needed everybody on the same panel—evidently you made the assertion that EPA helped New Mexico shut off the intakes for public 

water systems? 

Ms. MCCARTHY. I indicated that the notifications—— 

Mr. PEARCE. No, I did not ask about the notification. I asked 

about the help. 

Ms. MCCARTHY. That is what I was talking about. 

73 

Mr. PEARCE. All right. Secretary Flynn’s comment was that you 

are not involved at all in the decision, it was done entirely by New 

Mexico, and we could prosecute that decision—— 

Ms. MCCARTHY. No, the state—— 

Mr. PEARCE [continuing]. If we had everybody on the same panel 

together. 

Ms. MCCARTHY [continuing]. Does that. No—— 

Mr. PEARCE. So, the whole idea of accountability. 

Ms. MCCARTHY. Yes. 

Mr. PEARCE. Your comment was if anybody is negligent, or if a 

criminal activity—a different time you said that any administrative 

oversights will be dealt with. 

Ms. MCCARTHY. Yes, that is part of the—— 

Mr. PEARCE. About how long would you think that would be, before we would know the outcome of that? How long will that investigation take? 

Ms. MCCARTHY. Well, they are anticipating to be completed in 

October. 

Mr. PEARCE. OK. So then, my point to the others who maybe distrust that you will actually follow through on that, does the name 

Robert Beale or John Beale mean anything to you? 

Ms. MCCARTHY. It very much does, sir. 

Mr. PEARCE. OK. He is thrown in jail for 3 years for bilking the 

taxpayers out of about a million dollars, minimum. Has any money 

been received back from him? Did you, as an agency, go and claw 

back money that he had fraudulently filed for? 

Ms. MCCARTHY. We actually have, and we continue to look—— 

Mr. PEARCE. OK. 

Ms. MCCARTHY [continuing]. At that, and—— 

Mr. PEARCE. So, there were people in the Agency who had to sign 

leave, travel, salary, bonuses, all that sort of stuff. Right? 

Ms. MCCARTHY. I am aware of that, yes. 

Mr. PEARCE. Has anybody been held accountable for that? 

Ms. MCCARTHY. The processes were in place. If there is 

additional that we need to do, I—— 

Mr. PEARCE. No, no. Are any of the supervisors that signed off 

for him coming to work, or him going someplace that he did not 

actually go, traveling first class—has anybody been held 

accountable for that? 

Ms. MCCARTHY. There was a process in place—— 

Mr. PEARCE. No. Has anyone been held accountable for that? Are 

any of the management people who signed those things, knowing 

that he was at work, or not knowing—— 

Ms. MCCARTHY. Well, one of—— 

Mr. PEARCE. Again, going back to this situation, that oversight 

would be negligence, wouldn’t it, if somebody signed a leave form 

or signed a performance bonus when he did not deserve it? 

Ms. MCCARTHY. I do not know what the exact term is, sir, but 

that is absolutely an administrative responsibility for us to look at 

that—— 

Mr. PEARCE. Yet no one has been held accountable to date. So, 

people on this committee have a distrust that your study, which is 

going to be complete, you said, in October, will actually result in 

anyone doing anything—having any consequence to them at all. 

74 

Now, you were his direct supervisor for 4 years—2009 through 

2012. Three years, four, I don’t know. Something. 

Ms. MCCARTHY. Something, yes, sir. 

Mr. PEARCE. So, again, if people here have a little difficulty in 

believing that you are going to actually follow through on this 

issue, they look at that issue and say, ‘‘The highest paid employee 

of the EPA simply gets to skate for 20 years, not showing up for 

work, and no one is held accountable, no one.’’ 

Ms. MCCARTHY. Actually, I was the person who held John Beale 

accountable. 

Mr. PEARCE. Yes—— 

Ms. MCCARTHY. I was the one that referred this, and I really—— 

Mr. PEARCE. I understand that you were the one who discovered 

it, but you also signed off fraudulent payments to him that he did 

not deserve—— 

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

Mr. PEARCE [continuing]. And nothing has happened to you or 

anyone else. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman. 

Ms. McCarthy, you had recently stated on August 13 that, ‘‘We 

are going to be fully accountable for this in a transparent way.’’ 

Ms. MCCARTHY. Yes, sir. 

Mr. TIPTON. That was your quote. Just as a follow-up, we had 

sent a letter to you on August 15, signed by 29 other Members, listing out specific questions regarding the spill. When can we expect 

an answer? You have yet to respond. 

Ms. MCCARTHY. I will—I am sorry, when did you say you sent 

that? 

Mr. TIPTON. August 15. 

Ms. MCCARTHY. OK. I will double-check, and we will get you a 

tentative date, and—— 

Mr. TIPTON. No, that will be great. Mr. Westerman, Mr. Pearce, 

you are citing you are going to get back to people. I think that is 

a lot of frustration of the committee work. We hear, ‘‘We will get 

back to you,’’ but you never do—— 

Ms. MCCARTHY. Well, sir, I have not seen it, and I do not want 

to give you a date that I would then have to explain away, 

because—— 

Mr. TIPTON. Well, terrific. If you can get back to us on that, we 

would appreciate it. 

Ms. MCCARTHY. All right. 

Mr. TIPTON. In regards to transparency, you said that the EPA 

was examining different sites that could suffer an EPA meltdown, 

as we saw at the Gold King Mine. You have identified 10 different 

mines now, but that did not come forward until such time as there 

was an AP report. How is that feeding in with transparency? 

Ms. MCCARTHY. I am sorry, I do not exactly know the context in 

which you are referring, but—— 

Mr. TIPTON. Well, the context of the question is that you have 

identified 10 mines—— 

Ms. MCCARTHY. That is correct. 

75 

Mr. TIPTON [continuing]. That have the potential to be able to 

have a spill. 

Ms. MCCARTHY. No. What we did was, when this happened, I 

issued a memo to put a hiatus on all mining operations—mining 

recovery or, what is the word I am looking for, cleanups—that we 

were involved in. As a result of that, those cleanups stopped, and 

we have identified 10 that look similar to this, where we have to 

make sure we do not—— 

Mr. TIPTON. OK. Are you revealing the locations of all these 

mines? 

Ms. MCCARTHY. Say that again. 

Mr. TIPTON. Are you revealing the locations of all the mines? 

Ms. MCCARTHY. If folks want to have that, I think the states 

were revealed—— 

Mr. TIPTON. OK. 

Ms. MCCARTHY [continuing]. And they may have the—— 

Mr. TIPTON. We have—— 

Ms. MCCARTHY [continuing]. Locations, as well. 

Mr. TIPTON. In the AP report, one of the mines was the Standard 

Mine, near Crested Butte in Colorado, which is in my district. Is 

that information correct, that that is one of the suspect mines? 

Ms. MCCARTHY. I do not know, sir, but I can go back and take 

a look. 

Mr. TIPTON. OK. We would appreciate having the follow-up on 

that. 

What about districts other than mine, for other Members on this 

committee? Do you feel that it is going to be important to be able 

to reach out and give that notification in advance of potential spill 

areas, just as we saw at the Gold King Mine, to let people know 

in these districts? 

Ms. MCCARTHY. Yes. The Gold King Mine was raised to us, rather than the other way around. We got involved, is my understanding, because there was identified to be a blowout problem. So, 

we will continue to work cooperatively, there were no secrets here; 

that work was being done in a very transparent and publiclyaccessible way. 

Mr. TIPTON. I would like to change gears just a little bit here. 

I would like to know how many mining engineers does the EPA 

employ? 

Ms. MCCARTHY. I cannot answer that right now, sir, but I—— 

Mr. TIPTON. Do you know if there are any? 

Ms. MCCARTHY. I—— 

Mr. TIPTON. You do not have to give me a specific number. Do 

you employ any? 

Ms. MCCARTHY. I know we have a mining team, a national 

mining team that works on these issues, and I know that we work 

on—— 

Mr. TIPTON. But the team—— 

Ms. MCCARTHY [continuing]. Mining sites. 

Mr. TIPTON. Do you have any engineers? 

Ms. MCCARTHY. I do not know, sir. 

Mr. TIPTON. You do not know. Can you get back to us on that? 

Ms. MCCARTHY. Yes, sir. 

76 

Mr. TIPTON. OK. You have cited a number of times that you work 

with a lot of people with a lot of expertise in this area. I think a 

lot of the concern that we see is, just given some of the protocols 

that you put into place when we want to be able to juxtapose this 

to a private company that is meeting rigid standards, that your organization puts together those standards. 

When you, through the document dump that came out about 2 

weeks ago on a Friday, cited that there was a potential for a blowout at the Gold King Mine, why was there no effort to be able to 

determine how much water had actually backed up? 

Ms. MCCARTHY. Well, that—— 

Mr. TIPTON. If we are talking about having the expertise. 

Ms. MCCARTHY. Well, I would have to go back and identify what 

both Colorado and EPA were basing their judgments on, but it was 

a concern of the entire community, including the Animas River 

Stakeholder Group, that there was a—— 

Mr. TIPTON. It was a concern. I am just trying, really, to get to 

the point of prudence, in terms of your position on it. It is your job, 

you are the one that is heading this up. 

Ms. MCCARTHY. Well, I—— 

Mr. TIPTON. When we are looking through your documents, 

saying that there was a potential for a—— 

Ms. MCCARTHY. Yes. 

Mr. TIPTON [continuing]. Blowout at the Gold King Mine—— 

Ms. MCCARTHY. That is why we were there. 

Mr. TIPTON [continuing]. Would it have been prudent to have 

measured how much water is behind the wall that was built up? 

Ms. MCCARTHY. Well, that is one of the issues—did we take all 

the prudent steps we needed to? That is where the Department of 

the Interior is going to be able to help inform us. 

Mr. TIPTON. Can you understand some of the frustration, the 

position that you put yourself in—— 

Ms. MCCARTHY. Yes, yes. 

Mr. TIPTON [continuing]. As being the enforcers, the experts in 

the field, and you are saying, ‘‘This is a mystery. We are having 

now to look back and see what went wrong.’’ 

You know, actually, this is in my district. 

Ms. MCCARTHY. Yes, sir. 

Mr. TIPTON. I have talked to engineers, miners that work in that 

area. They would not have proceeded the way that the EPA did. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Ms. MCCARTHY. Thank you, sir. 

The CHAIRMAN. Ms. McCarthy, let me save you some time in 

getting back with him. According to your Web site, you have zero 

mining engineers. Actually, Scott, our committee has more mining 

engineers than EPA does. 

Mr. Hardy. 

Mr. HARDY. Thank you, Mr. Chairman. Along that same line of 

questioning, I would like to know how many hydrological engineers 

you have on your team? 

Ms. MCCARTHY. I do not know that answer, sir. 

Mr. HARDY. How about how many geological engineers? 

Ms. MCCARTHY. I do not know that answer, either. 

77 

Mr. HARDY. I guess the question that would go along with that, 

then, is how do we have the expertise in hiring a contractor to do 

this, or why does the EPA figure that they have that expertise, if 

you do not know? Isn’t it your responsibility to know? 

Ms. MCCARTHY. Not on every site, sir. But it is my responsibility 

to manage the Agency appropriately. 

Mr. HARDY. Did you know that the EPA requires that mines, before they can be open, have an environmental, a NEPA process 

done? And, in order to do that, they have to have geological engineers, hydrological engineers, and mining engineers to go along 

with that. Is that true? 

Ms. MCCARTHY. I am not that familiar with it, sir. But those are 

the issues that the Department of the Interior—— 

Mr. HARDY. You are the head of the department? Don’t you feel 

that is your responsibility, to know what you need in your 

department? 

Ms. MCCARTHY. Again, it is my responsibility to manage the 

Agency effectively. 

Mr. HARDY. So, before you hire somebody—what is the hiring 

process of a contractor before they begin work on such a project as 

this? 

Ms. MCCARTHY. I cannot say that I have ever been directly involved in that hiring process; but I am aware that we set criteria 

for the credibility of the contractors, we look for those with experience and background that is appropriate, and we do that through 

an RFP process. 

Mr. HARDY. How would we know what that experience and process is, if we potentially do not have the experience on our own 

staff, the EPA’s own staff, to be able to hire that type of a contractor, to understand what you need in that process? 

Ms. MCCARTHY. Well, I am not assuming that we do not have 

expertise to understand what is necessary for—— 

Mr. HARDY. I would just like an answer to that question. 

Through this process, when a mine is open and it has gone on— 

at least in the state of Nevada—for 60, 70, 80 years, you have to 

provide documentation, the environmental process, the NEPA 

process. It was called something in those days, but those processes 

are there. 

What happens to those records that are provided by those mine 

folks? What happens to that information that they have to provide 

the EPA or any other entity that is with the Federal Government? 

Ms. MCCARTHY. Any information that is provided with the 

Federal Government has to be properly retained, in accordance 

with the law. 

Mr. HARDY. Do you believe that would be pertinent to the investigation of this mine, and how to handle the situation, before we 

just hire a contractor to go do something? 

Ms. MCCARTHY. Whatever appropriate steps we should take 

should be documented. 

Mr. HARDY. I think those questions should all be asked before 

you start that process. I believe there has been a real violation 

here, a real problem. I see it happening within EPA; they are more 

worried about the environmental side of this situation than underVerDate Mar 15 2010 08:36 Jun 15, 2016 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\FULL COMMITTEE\09-17-15 JOINT\96242.TXT DARLEN
78 

standing the responsibility you have before these become contractors themselves. 

So with that, I yield back. Thank you. 

The CHAIRMAN. Thank you, I appreciate that. If Mr. Luja ́n were 

to come in here at some point—we have another panel—we will 

make sure that he has a chance of asking some questions. 

Ms. McCarthy, appreciate you being here. This is now 3 hours 

into this hearing. Once again I will state, and I do not want to 

sound like a teacher berating a student; but had you been willing 

to share the panel with the other four witnesses that were here, 

it would have been an enlightening opportunity and discussion. 

Those other witnesses who had some expert testimony could have 

added some expertise and some answers to the questions that had 

been here. So, I am very sorry that you were not able to do that. 

At the beginning, I said you might want to apologize to those for 

not being willing to sit on the same panel with them. I will give 

you that same opportunity. But, if not, this panel is expended, and 

we will invite the other four witnesses to come before us and take 

a position at the table. 

Ms. MCCARTHY. Thank you, Chairman. 

Mr. GRIJALVA. Mr. Chairman, if I may, a point of privilege. I will 

have to be leaving. I have questions for the additional witnesses 

that we will submit to the committee in writing. It is a conflict I 

cannot resolve. My apologies to the witnesses who are coming up. 

With that, thank you. 

The CHAIRMAN. I totally understand, and we will submit your 

questions to these witnesses in writing. 

We will take a brief pause here as we change panels. The faster 

we can make that exchange, the better it would be. 

[Pause.] 

The CHAIRMAN. While we are coming down let me introduce very 

quickly Mr. Russell Begaye, who is the President of the Navajo 

Nation; Mr. Mike Olguin—I hope I pronounced that close— 

Treasurer of the Southern Ute Indian Tribe; Dr. Larry Wolk, who 

is Executive Director of the Colorado Department of Public 

Education and Environment; and Mr. Ryan Flynn, who is the 

Secretary of the Environment for the state of New Mexico. 

Appreciate the four of you being here. 

Since you do not want to—don’t sit down yet. I am trying to save 

you some extra space here. Pursuant to the rules of the Oversight 

and Government Reform Committee—and only that committee—all 

witnesses will be sworn in before they testify. Would you please 

raise your right hands? 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Let the record reflect that all witnesses answered in the 

affirmative. Thank you, you may be seated. 

Once again, anything that you have submitted in writing is part 

of the record, and will be there. We will ask you each to make a 

quick statement, if you could, limited to 5 minutes. As you noticed, 

we will try and be kind of arbitrary with the gavel coming down; 

but we do appreciate you being here as part of this discussion. 

79 

We will start with President Begaye. You have 5 minutes to give 

an oral testimony to the committee. 

STATEMENT OF RUSSELL BEGAYE, PRESIDENT, NAVAJO 

NATION, WINDOW ROCK, ARIZONA 

Mr. BEGAYE. Good afternoon, Chairman Chaffetz and Chairman 

Bishop. Good to see you all, always. Thank you for your support, 

and also Ranking Members of the committees. My name is Russell 

Begaye [speaking native language], and I am the President of the 

Navajo Nation. 

I was born and raised along the San Juan River in Shiprock. 

Years ago, when I was a little boy, we saw hundreds of fish, dead 

fish, floating down the river. As boys, we would jump in the river, 

catching the dying fish. I had been asking for years why those fish 

were dead. I did not get an answer until August 13, when 

Administrator McCarthy came to visit our nation: 1.5 million gallons of radium 226 spilled from the uranium mill site located by 

the bridge in my hometown, Shiprock. We not only swam in that 

radioactive water, but my brothers ate the contaminated fish. 

I am asking members of these two committees to not allow history to repeat itself. Hold the EPA accountable for the toxic spill 

that occurred on August 5, about a month-and-a-half ago. Do not 

let them get away with their negligence. Our people are suffering. 

Much of the organic crops have been lost. Our livestock are penned 

up. Our farmers and ranchers are exhausted from hauling water. 

Our children are afraid of the river. 

We have been told by the EPA that cleanup will take decades. 

This is what we will have to live with for years to come. 

Today, we come to ask for help. The White House is silent. 

FEMA, DOI, and other Federal agencies are being told to not use 

their own resources to help us by the U.S. EPA. The U.S. EPA has 

made promises, but we have not seen any of these promises fulfilled. The promises were made empty. They are like the thunder 

we hear over our land, but with no rain. 

What our people need, first and foremost, is compensation now. 

The farmers and ranchers cannot wait months before they are compensated for their damages. I know this year’s bills will not be paid 

by these families, clothing for children will not be bought, and food 

will be scarce. Have the EPA set up an emergency compensation 

fund, and provide ongoing repayment of losses as they are submitted. Do not be a party to this injustice by having our farmers 

waive future claims after they get their first compensation checks. 

Secondly, we need an alternative water source for drinking, for 

our livestock, and for irrigating our farms. We are asking that 

wells be drilled, a reservoir built, and water be piped from the 

Navajo Dam. We want the EPA to build us a laboratory on the 

Navajo Nation, so we ourselves can continuously test our water, 

soil, plants, and livestock. We are asking this committee to tell 

President Obama to declare the San Juan a disaster area. Only 

then will other Federal agencies besides EPA provide services we 

need. This will allow FEMA, USDA, DOI, and other Federal agencies to provide resources we need now. 

We are asking this committee to hold a follow-up hearing in 

6 months, because we do not want this to become old news a week 

80 

from now. The Navajo Nation will not let any and all negligent parties get away with this disaster. We will stand our ground until our 

river and river beds are safe once again for our children to play in, 

and for our people to use as a drinking source. The Navajo Nation 

will no longer stand back when these types of atrocities are done 

to our people, our land, and our water—for water is life. 

I just want to thank you for your time and attention, and we will 

look to your leadership to right this injustice. [Speaking native 

language.] Thank you. 

[The prepared statement of Mr. Begaye follows:] 

PREPARED STATEMENT OF RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION

I. INTRODUCTION

Ya ́’a ́t’e ́e ́h (hello) Chairman Bishop, Chairman Chaffetz, and members of the 

committees, my name is Russell Begaye. I am the President of the Navajo Nation. 

I was raised on a farm along the San Juan River in Shiprock, New Mexico, one of 

the communities directly impacted by the subject of this hearing. Thank you for this 

opportunity to testify before your committee on a matter that is of utmost importance to the Navajo Nation. 

As you know, on Wednesday August 5, 2015, the United States Environmental 

Protection Agency (USEPA), and other parties, caused a massive release of toxic 

contaminants from the Gold King Mine into Cement Creek. The toxic sludge—which 

included harmful contaminants such as lead and arsenic—flowed south from the 

Cement Creek into the Animas River, then into the San Juan River (River), a major 

water source for the Navajo Nation. The San Juan River flows through 215 miles 

of some of the richest farmland in the Nation’s territory, and provides much of the 

Nation’s northern border. The impact to the Navajo Nation from this drastic release 

is compounded by the fact that much of this portion of the River is slower moving 

than upstream. 

Today, in the brief time I have, I would like to cover only a few critical areas of 

concern for the Navajo people. The critical areas of concern are as follows: 

• The USEPA’s, among others’, mishandling of the spill and the emergency 

response; USEPA’s lack of timely notice, transparency, and consistency; and 

the resulting culture of distrust; 

• History of contamination of the San Juan River and the need for cleanup; 

• Our preliminary findings on the short-term and long-term impacts of the spill 

on the Navajo people and environment, including economic, health, cultural, 

and spiritual impacts. 

To address the serious impacts of this spill and the continued threat to the Navajo 

people from future contamination, we request the following: 

• Resources from USEPA, FEMA and BIA to address the immediate emergency; 

• Assurances that USEPA will fairly and timely compensate the affected 

farmers and livestock owners for their damages, both in the near term and 

long term; 

• Resources to conduct our own water, sediment, and soil monitoring, and 

recognized authority for the Navajo Nation EPA to do the necessary work; 

• That the USEPA address all the contamination that is flowing into the River; 

• Resources to address near- and intermediate-term environmental and health 

impacts; 

• Resources to study and address the long-term environmental and health impacts of the spill, and to restore the River to a safe and healthy state; and 

• A fair and independent assessment of the role USEPA, and others, played in 

the events leading up to the Gold King Mine spill, and the establishment of 

a different lead agency. 

It is important to realize that in addition to the many known and yet unknown 

physical, chemical, biological, and economic effects of this spill, this spill has taken 

a cultural and spiritual toll on our society, disrupting our hozho. Hozho encompasses 

beauty, order, and harmony, and expresses the idea of striving to maintain balance 

81 

1 Email from Harry Allen, Chief, Emergency Response Section, USEPA Region 9, to Russell 

Begaye, President, Navajo et al. (Aug. 7, 2015, 11:58 PT) (on file with NNDOJ). 2http://fox6now.com/2015/08/13/gold-king-mine-owner-i-foresaw-disaster-before-epa-spill-intoanimas-river-in-colorado/. 

in the Navajo universe. The trauma from this spill will be felt for years to come, 

and we need immediate and sustained help to restore the balance for our people. 

II. THE USEPA’S MISHANDLING OF THE SPILL AND CREATION OF A CULTURE OF DISTRUST

The NNEPA works in close partnership with USEPA to facilitate the Nation’s 12 

environmental programs, which are largely, if not completely, funded by the 

USEPA. A good and close working relationship with USEPA has always been critical to the success of the NNEPA. However, recent events relating to this spill have 

led to a complete shift in that relationship as USEPA has sought to quiet our legitimate concerns, and has made repeated missteps in its response efforts. We have serious concerns about the strong conflict of interest USEPA has with respect to this 

investigation and the emergency response necessary. No other environmental bad 

actor would be given leeway to investigate itself and determine to what extent it 

will be held accountable. We are encouraged that USEPA’s Office of Inspector 

General will be reviewing this incident, but we believe another agency should take 

the lead on the on-ground response, and an independent body should conduct the 

investigation. 

To begin with, the USEPA inexplicably delayed notification of the spill to the 

Navajo Nation. The spill occurred the morning of August 5, 2015, but the Nation 

was not informed of the release until August 6, a full day later, and not even by 

the USEPA but by the state of New Mexico. It took the USEPA almost 2 full days 

to notify us. We view this as a violation of the government-to-government relationship between the Federal Government and the Navajo Nation. 

The USEPA also demonstrated a complete lack of transparency. Our initial warning from USEPA was of an ‘‘acid mine drainage spill in the Animas River north of 

Durango’’ of ‘‘[a]pproximately 1 [million] gallons.’’ USEPA’s initial focus appeared to 

be on pH levels. This served to downplay the magnitude of risk to human and animal health, and later reports by USEPA of released contaminants were incomplete. 

The media was receiving faster and fuller information from USEPA than the Navajo 

Nation. For example, the New York Times reported the spill hours before USEPA 

provided the Nation with notice of the spill. And media sources reported that 

USEPA confirmed the presence of arsenic on Friday, August 7, whereas USEPA still 

had not reported the presence of arsenic to the Nation even by Sunday, August 9. 

USEPA on Friday, August 7 informed the Nation that ‘‘the water in Cement 

Creek and the Animas River near Silverton is clearing,’’ but the Vice-President and 

I nonetheless made plans to travel to the Gold King Mine Sunday to assess the situation for ourselves.1 We requested a tour from USEPA, but faced immediate resistance. USEPA staff indicated they would only take us to the confluence of Cement 

Creek with the Animas River in Silverton, Colorado, but the water at the confluence 

remained bright orange. It did not appear to be ‘‘clearing.’’ We thus urged USEPA 

to take us to the point of release. They again refused, this time compromising by 

offering to take us to the treatment pools below the mine adit. We finally convinced 

them to take us within a half-mile of the point of release. We walked the rest of 

the way to the point of release. There we saw a completely unblocked mine adit with 

an estimated 550 gallon per minute flow of bright, opaque orange liquid pouring 

forth. We have since learned that prior to the blocking of the nearby Sunnyside 

Mine and the Red and Bonita Mine, Gold King Mine was releasing water at only 

7 gallons per minute.2 We took video footage and photos at the point of release and 

shared these with the public. This appeared to be the first time USEPA Region 9 

staff visited the point of release. 

While USEPA was slow in notifying the Nation of the initial spill and its associated risks, it was quick in dispatching staff to Navajo communities to hand out 

Standard Form 95 and encouraging members of the Navajo Nation to fill out forms 

to expedite settlement of their claims under the Federal Tort Claims Act and apparently to obtain releases from members of the Navajo Nation. But this was only after 

I announced that the Navajo Nation would be suing the USEPA and other liable 

parties for the spill. The Navajo Nation Attorney General reviewed the form and 

identified plain and clear language on the form asserting that individuals submitting the forms would be filing the forms in pursuit of ‘‘FULL SATISFACTION AND 

FINAL SETTLEMENT’’ of their claims for damages and injuries that yet remain 

unknown. 

82 

3http://www2.epa.gov/region8/upper-animas-mining-district. 

4http://www2.epa.gov/region8/upper-animas-mining-district. 

5http://www2.epa.gov/sites/production/files/2015-08/documents/goldkingminewatershedfact 

sheetbackground.pdf at 2. 6http://www2.epa.gov/sites/production/files/2015-08/documents/goldkingminewatershedfact 

sheetbackground.pdf at 2. 7 Id. 

This presented our people with a difficult choice. The economics of farming makes 

the cashing out of harvests time-critical. Our farming families were expecting to sell 

their harvests along a predictable timeline that was disrupted by the closing of the 

San Juan River to irrigation use. They relied on the predictability of this timeline 

to defer bills and expenses until harvest time. Now that time is passing, and many 

of them need their anticipated harvest returns immediately to catch up on bills and 

to buy school clothes, among other things. Yet if they fill out Standard Form 95 and 

receive a settlement check, they may not be able to defer cashing that check while 

they wait for additional damages or injuries to accrue. I, along with the VicePresident and Attorney General, have thus asked USEPA for an interim claims 

process that will allow for ongoing claims filings, and our Attorney General has 

asked for a U.S. Attorney General opinion confirming that the filing of Standard 

Form 95 and the settling of a claim filed under that form or process does not in 

fact fully satisfy and settle the claim. None of this has happened while the Navajo 

people continue to suffer. Despite our requests, the USEPA has yet to confirm to 

us that it will fully and fairly address all damages and injuries to members of the 

Navajo Nation who have been impacted by the spill. 

These instances—but a few among many—have led to distrust by the Navajo 

Nation toward USEPA, both among our farmers and our leadership. The NNEPA, 

in contrast, continues to have the trust of our farmers and our leadership. Despite 

the NNEPA’s limited resources, we turn to the NNEPA for honest data assessments 

and technical answers. 

III. HISTORY OF CONTAMINATION OF THE SAN JUAN RIVER AND THE NEED FOR CLEANUP

This incident is one of many where responsible parties have contaminated Navajo 

land and water. I was born and raised in Shiprock, and as a child one summer, I 

once saw hundreds of dead fish floating down the San Juan River. We knew something was not right with all these dead fish in the River. But the next day we were 

back in the water, playing in it. There was no one to tell us to stay out of the 

water—that it was dangerous. We always wondered why all the fish died in the 

River, and it was not until USEPA Administrator Gina McCarthy visited Shiprock 

on August 13, that I learned the story of why this occurred. There is a 1.5 million 

ton uranium tailings pile above a floodplain feeding into the San Juan River in the 

middle of Shiprock. That summer, a dam holding a pool of tailing-contaminant filled 

water burst into the River. But no one told us what had happened. We cannot tolerate this contamination of our sacred lands. 

Yet the recent spill threatens to recur, either from unsettling of contaminated 

sediment in our River waters, or from ongoing contaminated releases from upstream 

mines. USEPA stated early on that we will be dealing with the effects of USEPA’s 

Gold King Mine chemical spill ‘‘for decades.’’ Gold King Mine is just one of over 300 

abandoned hardrock mines in the heavily contaminated 140-mile-area known as the 

Upper Animas Mining District (District).3 The District includes private, Federal, 

and state lands, and the town of Silverton.4 Gold King Mine was twice considered 

for inclusion on the National Priorities List (NPL), both as part of the District, and 

as a narrower carve-out from the District, and the recent spill was preceded by two 

spills in the 1970s. We sent a letter to Administrator McCarthy on Monday, 

September 7, requesting that this District be made a Superfund site so that USEPA 

will make the cleanup and containment of the site a priority, and thereby protect 

us downstream communities. 

The Mine’s first Superfund site assessment was conducted in the 1990s, and the 

assessment concluded, ‘‘that water quality standards were not achieved’’ in the 

District.5 The assessment also identified ‘‘severe impacts [of the District] to aquatic 

life in the Upper Animas and its tributaries.’’ 6 Despite the serious harm being 

caused by the District, USEPA postponed listing the District on the NPL in order 

to allow a ‘‘community-based collaborative effort’’ to clean up and mitigate harm 

from the District ‘‘as long as progress was being made to improve the water quality 

of the Animas River.’’ 7

Yet in 2005, the ‘‘water quality ha[d] declined significantly’’ in the area, and so 

in 2008, USEPA performed another NPL assessment, this time on the Upper 

83 

8 Id. 9 Id. 10 Id. 

Cement Creek alone.8 The study again confirmed, ‘‘that the area would qualify for 

inclusion’’ on the NPL.9 Despite the additional confirmation that the Mine area 

should be listed on the NPL, ‘‘EPA postponed efforts to include the area on the 

National Priorities List,’’ again ‘‘after receiving additional community input.’’ 10

USEPA’s repeated denial of the facts with respect to the level of harm posed by the 

Gold King Mine and its surrounding mines has placed downstream jurisdictions 

such as the Nation at undue risk. This further contributes to a lack of trust in 

USEPA’s ability to protect the health and well-being of Navajo people. 

The threat of a spill from the District remains under the existing management 

scheme. The chemicals found in the District pose significant human health risk as 

they contain known carcinogens and elements, like lead and arsenic, that can affect 

major organ systems such as cardiovascular, respiratory, gastrointestinal and reproductive systems. The risks to the Navajo people are very real. Neither my people 

nor the other communities living near the rivers can tolerate a recurrence of the 

unprecedented damage caused by the Gold King Mine spill. 

Based on our extrapolation of known data, over 20 million gallons of aggregate 

contaminated flow has spilled from the Mine since August 5. If the USEPA does not 

address these sites through designation as a Superfund site, contaminants will continue to flow freely into the Nation’s waters, and the concentration of contaminants 

in our waters will increase, extending the duration of exposure for our people, which 

is already significant now, even further into the future. Metals poison people slowly, 

and sediments eventually make their way downstream. We are thus gravely concerned that the metals coming from Gold King Mine and the District are making 

their way down to us, and will settle in our slow waters. We are also concerned that 

efforts to flush contaminants out of the Farmington area flushed contaminated sediments into our territory, and that those contaminants will remain here for a long 

time. We do not want our people to be poisoned, so we urge you to do what you 

can to help us secure NPL listing for the District. 

IV. SHORT- AND LONG-TERM IMPACTS

The impacts of this spill, as well as the ongoing contamination from mines in the 

area, are devastating and myriad. The reliance of our people on the San Juan River 

and the significance of the River to our people cannot be overstated. The Navajo 

Nation as a whole is a largely agricultural society, and our people have traditionally 

farmed and ranched since pre-contact. The San Juan River Basin is a bastion for 

ancient Navajo seed strains that our people have carefully refined over centuries to 

thrive in our arid region. Farming and ranching are the backbone of our culture and 

economy, and are both heavily dependent on the San Juan River. Indeed, in our arid 

region with little water distribution infrastructure in place, our farmers rely heavily 

on the San Juan River and ditch irrigation practices to keep their fields hydrated 

and their crops growing. I want to lay out for the committee some of the impacts 

of the contamination on the Navajo Nation. But I want to stress that, because of 

the historic and long-term nature of the contamination caused by the spill and the 

lack of full transparency, all of the economic, health, cultural, and other impacts to 

the Navajo people are not yet known. 

First, our farmers and ranchers and our traditional people felt the most immediate impact from the spill. You can imagine the significant economic and emotional 

toll on our farming families, who mostly live on their farmlands and consume their 

crops as a matter of subsistence. These families have lost a significant portion of 

a full growing season’s worth of work. Now these families have to look at their dead 

crops each day, and are constantly reminded of the loss. 

As I visited farmers and ranchers, I saw a lot of farms where corn had not fully 

matured due to lack of water. As a result, the corn crops had only the stalk but 

no corn. The corn pollen that is so critical to everyday Navajo spiritual life did not 

develop properly for many of these crops. A lot of Navajo melons only grew to a fifth 

of their size. One family was forced to abandon all but a single acre of their 32- 

acre field, opting to save plants with cultural significance. 

Second, the spill has already severely impacted our economy and may continue 

to do so for years to come. The Navajo Nation already faces a daunting unemployment rate of 42 percent. Yet along the San Juan River, many of our people are able 

to make a life for themselves and support their families through farming and ranching. Many of our farmers create additional economic value for themselves by 

84 

11http://m.startribune.com/nation/321518301.html. 

carefully growing profitable organic crops, or raising grass-fed and organic beef or 

mutton product. Now their livelihoods have been significantly disrupted by the spill. 

Growing cycles and field rotations have been disrupted, and farmers who are used 

to producing their own farm goods will now need to buy fruits and vegetables for 

themselves, and hay and alfalfa for their livestock, to replace what was lost. Our 

farmers will also lose income from the expected sales that did not or will not occur. 

Even farmers who have been able to salvage their farm goods now face a stigma 

developing with respect to fruits and vegetables grown along the San Juan River. 

This triggers a cycle of economic losses for the community. 

Third, the long-term health effects of the spill are ominous and not fully understood. Heavy metals like lead, arsenic and others that were discharged during the 

spill are known to be dangerous to humans, animals, and plants. These metals persist in the environment and are particularly harmful to fetuses and children. To provide a sense of the magnitude of exposure to these harmful metals just from the 

spill, one report of EPA data indicated that lead was found near the Cement Creek/ 

Animas River confluence ‘‘at more than 200 times higher than the acute exposure 

limit for aquatic life, and 3,580 times higher than Federal standards for human 

drinking water.’’ And arsenic was found ‘‘more than 24 times the exposure limit for 

fish and 823 times the level for human ingestion.’’ 11 Human consumption of farm 

products and livestock raised on contaminated water is therefore of grave concern. 

We are especially concerned about sheep because sheep liver and kidney are cultural delicacies, and are organs that are most likely to concentrate contaminants. 

In addition, long-term effects on wildlife that live in or rely on the River for water 

must be understood because we hunt and fish these animals to put food on our tables, and as part of our traditional cultural practices. Although USEPA has stated 

that surface water returned to its previous condition, many of the contaminants 

have merely settled to the bed of the River, and will be remobilized later during 

storm events, for example. 

Fourth are the cultural and spiritual losses that we have sustained. Indeed, the 

Navajo Nation’s impacts are felt most pointedly in the disruption of our cultural 

principle of hozho, which encompasses beauty, order, and harmony, and expresses 

the idea of striving to maintain balance in the Navajo universe. We connect to our 

land, our water, and each other through ceremonies and gatherings. We grow four 

types of corn, each used for a specific purpose in our ceremonies, and those seeds 

are protected by the strong culture of farming that has persisted in the San Juan 

River Basin. Navajo corn husks are mixed with tobacco to create ceremonial smoke, 

and our corn pollen is used as an essential element in all Navajo ceremonies. One 

of our corn seed strains is utilized in our critical kinaalda ceremonies (the coming 

of age ceremonies for our women). We also grow an array of heirloom fruits and 

vegetables that our people eagerly anticipate selling and purchasing during our 

popular fair season each fall. Those fruits and vegetables are shared over family tables, and are a part of the cultural glue that keeps our families and way of life 

intact. Families travel for hours across the Nation to the San Juan River Basin to 

access these ingredients for our ceremonies and celebrations. But the spill destroyed 

many of these crops so critical to our prayers, ceremonies, and our way of life. 

Fifth, the impairment of the River and the adverse impacts to our farmers and 

ranchers, and our community as a whole, will mark a moment of community trauma 

that will be endured for years to come. This new trauma will compound our already 

significant historical trauma, and raises new and troubling public health concerns. 

Already three suicides have occurred in the course of the last 2 weeks in affected 

communities along the River. Our Department of Health is researching the connection of the suicides to the spill, and we are concerned that these might be the first 

of a larger cluster. This tragedy affects all of our Nation because so many of us have 

relatives in Northern Navajo. Compounding this trauma, are the repeated response 

failures and withdrawals of aid (and blockage of aid) by USEPA, which have sent 

a strong message to our people that Navajo lives don’t matter, that our health and 

well-being don’t matter, and that our way of life doesn’t matter. We will be dealing 

with the effects of this spill for decades and rebuilding the shattered sense of self 

so many of our people are experiencing as a result of this disaster. 

85 

V. SIGNIFICANT RESOURCE NEEDS

In light of the devastating impacts from this spill, both known and yet unknown, 

we need to act quickly and thoughtfully to protect our Navajo citizens, our natural 

resources, the Navajo way of life, and most importantly our future generations. We 

need assistance from the responsible parties to address the short- and long-term 

impacts, to make us whole, and to return the beauty and hozho to our River and 

our people. In addition to oversight and national attention, Congress can provide 

forward-thinking legislative solutions to some of these issues. We therefore ask for 

the following: 

1. We continue to need resources from USEPA, FEMA and BIA to 

address the ongoing need. We still need continued delivery of water for 

both livestock and farming, as well as the delivery of hay to impacted 

ranchers. Farmers and livestock owners are essentially fed water from two 

point sources along the San Juan River. Although we have allowed the waterways to be opened for irrigation only, the farmers who are fed water from one 

point source have unanimously voted not to use the San Juan River water 

because they lost all faith in the USEPA’s data. These farmers still need 

water for both their crops and livestock and hay for their penned livestock. 

The USEPA’s actions in this matter have spread fear, and our farmers and 

ranchers should not be penalized for their lack of trust in the USEPA. 

On the other point source, the water was reopened for irrigation purposes 

only. Based on the data samples our Navajo Nation Environmental Protection 

Agency has seen, the contaminant levels were still above Navajo standards 

and therefore the water is not safe for consumption by livestock. As such, livestock owners in the area need to pen up their animals in order to prevent 

them from drinking the River water. They will still need water delivery and 

hay for their penned livestock. 

Even in light of the above, the USEPA has essentially withdrawn assistance. 

The Bureau of Indian Affairs has been helpful, but they had to pull out because they ran out of funds. FEMA has denied assistance to Navajo, deferring 

to USEPA as the lead response agency. As it currently stands, there are no 

Federal services being provided to farmers and ranchers in the area. We as 

a Navajo Nation government, and our farmers and livestock owners, are left 

to deal with not only the contamination, but the financial and emotional mess 

left behind by the USEPA’s actions. I ask, why should we bear that burden? 

2. If USEPA will not continue its services to mitigate the harm to 

farmers and ranchers, we need assurances that they will fairly and 

fully compensate the affected farmers and livestock owners for their 

damages. Many farmers and ranchers have lost crops. Many have expended 

their own funds to try and mitigate their damages. Some have lost economic 

value of their goods, among a whole host of other possible damages. We are 

unsure as to whether the FTCA claim process will provide fair, full, and ongoing compensation to our people. As previously stated, we have asked USEPA 

for an interim claims process or a relief fund that will allow for ongoing 

claims and quick remuneration. And we have asked the U.S. Attorney 

General for an opinion confirming that the filing of Standard Form 95 and 

the settling of a claim filed under that form or process does not in fact fully 

satisfy and settle the claim as the plain language of the form and the FTCA 

itself indicates. Despite the urgency with which our people need to be compensated for their already experienced losses, to date we have received no response or confirmation from the USEPA or USDOJ. 

3. We need resources to conduct our own water, sediment, and soil 

monitoring, and authority for the NNEPA to do the necessary work. 

Due to our lack of trust in the USEPA and the conflict of interest that exists 

with the USEPA, we want to be able to monitor their work and confirm their 

results. We will require an on-site lab, and additional staffing to manage the 

sampling and lab performance. We are already expanding our scope of work 

into the realm of sediment testing, but testing and lab work is expensive, so 

we need additional funding to facilitate that work. This will enable us to provide our farmers and our leaders with the answers they deserve, and with 

answers they can trust. 

4. The U.S. Environmental Protection Agency needs to clean up all the 

contamination that is flowing into the River. As we have discovered, 

along with the Gold King Mine, there are many hundreds of hardrock mines 

along the River that continually release contaminants into the River. We 

86 

suspect that the volume of contaminants they release over time is much 

greater in magnitude than this latest burst from the Gold King Mine. USEPA 

needs to develop a plan to clean up these sources of contaminants, share their 

plan, and implement and complete that plan. We request, as part of the plan, 

that USEPA designate these mines as Superfund sites. 

5. We need resources to address near- and intermediate-term impacts. 

We need assistance to create redundant and auxiliary water supplies, at least 

two treatment plants, additional drilling for wells, repair of windmills and 

new reservoirs to guard against the negative impacts of future contamination. 

Until there is a plan in place from the USEPA that would prevent future contamination of the San Juan River, and that plan is implemented, we need 

these water supplies and reservoirs in case we need to shut off water from 

the River again. For the sake of our people and our Nation, we hope we do 

not ever have to do that again, but for now, that risk remains. We also need 

treatment plants to filter out contaminants to make the water safe for 

human, animal and agricultural consumption, including a water treatment 

plant at the head of our waters in the communities of Upper Fruitland and 

Shiprock. 

6. We need resources to study and address the long-term health, 

economic and environmental impacts of the spill and to return the 

River to a safe and healthy state. While long-term health and economic 

impacts have not yet been quantified, we believe they will be substantial. We 

will need assistance monitoring health impacts, including mental health impacts, as well as the resources necessary to fund this monitoring effort and 

to fund treatment, if necessary. Extensive planning and study will be needed 

to return the San Juan River to a safe and healthy state. 

7. We demand a fair and independent assessment of the USEPA’s and 

others’ role in the spill, and the establishment of a different lead 

agency. Since they were the cause of this contamination, we have serious 

concerns about the strong conflict of interest USEPA has with respect to this 

investigation and the emergency response. An independent body should 

conduct the investigation, and FEMA should take over as lead responding 

agency. 

8. We ask that Congress revisit this important issue and the Federal 

response in 6 months. This complex issue will not disappear overnight for 

the Navajo people; we request Congress hold another hearing in 6 months to 

ensure the Federal Government, starting with the responsible party, the 

USEPA, has made sufficient progress. 

Ahe ́hee.’ Thank you for your time and attention to this important issue. 

QUESTIONS SUBMITTED FOR THE RECORD TO THE HONORABLE RUSSELL BEGAYE, 

PRESIDENT, NAVAJO NATION

Questions Submitted by Rep. Grace Napolitano 

Question 1. Tribes have a special relationship with the Animas and San Juan 

Rivers. They withdraw water that does not have go through traditional water treatment before it is used to irrigate crops, water stock or be used directly by the tribal 

people. What specific actions has the EPA given Navajo Nation and the Southern 

Ute Tribal Council to ensure that the tribes are funded, supported, and worked with 

as required—in a nation-to-nation relationship to track the impacts of this spill over 

the years it will take to move the sediment downstream? 

Answer. Thank you for the question, Congresswoman Napolitano. As far as we 

know, USEPA has not targeted specific funding for tracking the impacts of the Gold 

King Mine spill to the San Juan River over the next few years. Generally, our 

Navajo Nation Environmental Protection Agency (NNEPA) receives about $20,000– 

$50,000 per year from the USEPA to contract with an analytical lab to analyze ambient water quality samples taken from waters across the Navajo Nation. In Fiscal 

Year 2015, the NNEPA has directed these funds (about $20,000) to analyze samples 

collected from portions of the San Juan River to determine its metal concentrations 

and compare it to levels from past water quality sampling efforts. This funding 

amount is much too small to provide an appropriate level of analysis of the spill 

impacts to the San Juan River. The Navajo Nation should receive funding similar 

87 

to states, in a set-aside form, and in an amount of about $1.7 million (approximately 

equivalent to West Virginia) for its water quality monitoring program, NNEPA 

would then have a budget of about $450,000 for its sampling efforts, which would 

lead to a better assessment of the impacts of contamination to the Navajo Nation’s 

water supplies. 

The Navajo Nation is also in the process of negotiating a Cooperative Agreement 

with the USEPA that we hope will provide reimbursement of some of the significant 

cost of the Navajo Nation’s response efforts and for some future monitoring. There 

may be difficulties in our negotiations because we do not expect that USEPA will 

support reimbursement of all our costs. For example, they have indicated that they 

will fund water and sediment monitoring, but not other studies that the Nation considers important such as monitoring of human health, livestock, wildlife and agricultural impact studies. Nonetheless, we will continue to work toward a fair and 

equitable agreement for the Navajo Nation. 

In addition, USEPA has recently invited the affected Indian tribes and states to 

be part of a team to design and implement its long-term monitoring plan. We will 

participate and hope that the outcome is an effective plan that will be funded at 

a sufficient level to be effective. 

Other than as stated above, we are not aware of any other current actions from 

USEPA in supporting or working with the Navajo Nation in directly tracking spill 

impacts. There is a possibility of future efforts, but that depends on the outcome 

of negotiations on the cooperative agreement and development and implementation 

of the long-term monitoring plan. 

Question 2. EPA has been working to fix this local issue that has been polluting 

the Animas River at a rate of approximately 330 million gallons per year. Has 

either tribe become aware of any short- or long-term effects on health, livestock, etc. 

from this polluted water? 

Answer. At present, some of the specific impacts we are aware of include, but are 

not limited to, significant crop losses, some animal losses, market effects (a stigma 

is developing with respect to purchasing farm goods from the affected communities), 

excessive wear and tear on vehicles and equipment used to haul water, increased 

reporting of domestic violence in the affected communities post-incident, seven suicides post-incident (four of the first were in affected communities), and other financial and health issues. There are many impact concerns. As such, there are impact 

studies currently being conducted and proposed. In addition, you can refer to 

Section IV of my written testimony submitted to the committee, which highlights 

some of the short- and long-term impacts. As I stated before, not all of the impacts 

of the spill are currently known or knowable as our first priority has been to respond to the immediate needs of the Navajo people as a result of this historic event. 

Question Submitted by Rep. Dan Newhouse 

Question 1. Could you detail the impact this EPA-caused environmental disaster 

will have on farmers in the Navajo Nation? 

Answer. Thank you for the question, Congressman Newhouse. Our written testimony submitted to the committee highlights many of the impacts Navajo farmers 

have and will face as a result of the Gold King Mine (GKM) spill. At the outset, 

I note that given the historic nature of the GKM spill, not all impacts are known 

or knowable today, and many impacts have not yet been quantified. Our priority 

as a Nation has been to respond to the crisis while we are working toward a fuller 

assessment of the scope and magnitude of the impacts. With that in mind, some of 

the impacts include the following. From the date when the plume of contaminants 

from the spill were estimated to be moving through Navajo waters (August 8) until 

our waters were determined suitable for irrigation and livestock use by our Navajo 

Nation EPA, the gateways to the Nation’s irrigation canals along the San Juan 

River were turned off. Our waters were reopened to irrigation use on August 28. 

However, a number of Navajo farming communities took extra precautionary measures, given the uncertainty regarding the level of contaminants in the River and 

their possible effects. These farmers left their irrigation canal gates closed to avoid 

contaminating their canal and their crops (which contamination would and could 

have long-term impacts). The Navajo Nation honored their wishes for taking this 

precautionary measure by not opening the irrigation gates that would have allowed 

water to flow by farmer’s individual head gates. During the period that the River 

was closed to irrigation use, crops were lost or their growth stagnated. Some lost 

crops, such as alfalfa, cannot be replanted for another 2 to 3 years because of necessary soil preparations. In addition, even though some crops were saved, there 

88 

appears to be continued concern about market confidence in those crops. There have 

also been significant mental health impacts caused by the GKM spill, as well as impacts on the non-farming community. I know that recovery is going to be a long 

process, but I hope that one day, all these farmers will have their confidence 

restored in the water that they use to irrigate their crops. 

The CHAIRMAN. President, thank you for your testimony. 

Mr. Olguin, probably the correct title is Councilman, right? 

Mr. OLGUIN. Yes. 

The CHAIRMAN. Councilman, you are recognized for 5 minutes. 

Mr. OLGUIN. Thank you. 

STATEMENT OF MIKE OLGUIN, MEMBER, TRIBAL COUNCIL, 

SOUTHERN UTE INDIAN TRIBE, IGNACIO, COLORADO 

Mr. OLGUIN. Good morning, Chairmen Bishop and Chaffetz, 

Ranking Members, and committee members. My name is Mike 

Olguin. I am honored to be here. I am an elected member of the 

Southern Ute Indian Tribal Council, which is the governing body 

of the Southern Ute Indian Tribe. Thank you for the opportunity 

to appear before you today on behalf of the tribe, to discuss the 

Gold King Mine spill and its impacts on the tribe and our 

community. 

Before I begin, I would like to thank Congressman Young and 

Chairman Bishop for last week’s action improving the Native 

American Energy Act, and reporting it to the Full House. The tribe 

was active in developing that bill, and supports enactment. 

My testimony at this time, Mr. Chairman, I would like to mention a few key items from my written statement. Then I would like 

to answer questions that you and the committee members may 

have. 

The Animas River crosses the tribe’s reservation downstream of 

Durango, Colorado, and upstream of New Mexico. Since the Gold 

King Mine blowout on August 5, the tribe has been extensively 

engaged in responding to the spill. We first learned of the Gold 

King Mine release when the Colorado Department of Natural 

Resources notified the tribe on the afternoon of the spill. We immediately responded by implementing our Emergency Management 

Plan, contacting the County Office of Emergency Management and 

EPA, and sampling water quality before the spill reached the 

reservation. 

In the first days after the spill, it was largely the local jurisdictions who were responding to the incident. The tribe issued a 

disaster declaration on Saturday, August 8. Other jurisdictions 

followed suit. 

In the days that followed the release, we attended to the needs 

of the tribal membership. We posted signs, closing access to the 

river on the reservation. We delivered water, bottled water, 

provided water tanks, and water for livestock. We also held informational meetings with tribal members, and offered temporary 

housing for our affected tribal members. 

Additionally, we coordinated EPA testing of tribal member domestic water wells. For the duration of the response, tribal staff actively participated with personnel from other affected governments 

89 

in the unified incident command, and remains engaged in the 

incident command to this day. 

As of the Friday after the spill, the EPA still did not have a coordinated effort in Durango. In the absence of a Federal presence, 

local jurisdiction, including the tribe, worked together. For example, on August 6, the tribe’s water quality program called the New 

Mexico spill reporting hotline and reported the spill to New Mexico. 

At that point, neither EPA nor Colorado had notified New Mexico. 

The county and our tribe notified our sister tribe, the Ute 

Mountain Ute Tribe, of the spill. We also shared information with 

downstream tribes in the Lower Colorado Basin. 

For the period from August 5 through September 8, the tribe in- curred approximately $170,000 in cost responding to the spill, 

mostly in staff time. We understand neighboring community businesses suffered losses, and our neighboring local governments also 

incurred costs. We are working with EPA to obtain reimbursement 

for costs already expended, and future costs that will be incurred, 

including the cost of continued water quality monitoring. 

The tribe has long had an active water sampling program funded 

by EPA Tribal Assistance Program and Clean Water Act grants. 

The tribe’s water quality data provided valuable information to all 

the parties affected by the Gold King Mine spill. We tested before 

the plume hit the reservation, and for 2 weeks after the spill. 

During that time, we were testing daily for over 25 substances, including aluminum, silver, magnesium, arsenic, lead, and mercury. 

Coincidentally, just 2 weeks before the Gold King spill, we had 

collected tissue samples from fish in the Animas to conduct metals 

analysis on those samples. We shared our water quality data and 

continued monitoring, which should provide important information 

on long-term impacts. 

Like others, we favor a full evaluation of events leading to the 

spill, and the EPA’s performance responding to the spill. However, 

it is important to keep this incident in perspective and understand 

its point to a much larger problem. There are estimated to be 

23,000 abandoned mines in Colorado alone, causing water pollution 

problems. Federal leadership, assistance, and cooperation among 

downstream community stakeholders is key to avoiding another 

blowout and addressing the problem of abandoned mine drainage 

polluting the Upper Animas River watershed. 

Thank you for this opportunity to appear before you today. 

[The prepared statement of Mr. Olguin follows:] 

PREPARED STATEMENT OF JAMES M. ‘‘MIKE’’ OLGUIN, SOUTHERN UTE INDIAN TRIBAL

COUNCIL MEMBER, SOUTHERN UTE INDIAN TRIBE

Good morning Chairmen Bishop and Chaffetz, Ranking Members Cummings and 

Grijalva, and committee members. Thank you for the opportunity to appear before 

you today on behalf of the Southern Ute Indian Tribe to discuss the Gold King Mine 

spill and its impacts on the Tribe and our community. 

My name is Mike Olguin. I am an elected member of the Southern Ute Indian 

Tribal Council, which is the governing body of the Southern Ute Indian Tribe. The 

Southern Ute Indian Reservation encompasses approximately 710,000 acres in 

southwestern Colorado. The Tribe is blessed by eight rivers traversing its 

Reservation in five main drainage basins. One of those rivers is the Animas River, 

which bisects the western half of the Tribe’s Reservation, downstream of Durango, 

Colorado, and upstream of New Mexico. 

Since the Gold King Mine blowout on August 5, the Tribe has been actively and 

extensively engaged in responding to the spill. Because of this experience, the Tribe 

90 

has learned some lessons and is prepared to share our observations with the 

committees. 

TRIBAL AND LOCAL GOVERNMENTS WERE PARTICULARLY RESPONSIVE AND EPA WAS

COOPERATIVE IN RESPONDING TO THE SPILL

The Tribe first learned of the Gold King Mine release when the Deputy Director 

of the Colorado Department of Natural Resources notified the Tribe’s Wildlife 

Resources Division on Wednesday afternoon, August 5, 2015. Our Tribe immediately 

responded by implementing its emergency management plan, contacting the La 

Plata County Office of Emergency Management, estimating when the contaminant 

plume would reach the Reservation, contacting EPA to determine the appropriate 

analyte list for water quality sampling, and commencing baseline water quality 

monitoring activities before the spill reached the Reservation. On Thursday and 

Friday, August 6 and August 7, tribal staff coordinated with EPA and La Plata 

County personnel, attended meetings, gathered information, and continued daily 

sampling on the Animas River. In the first days of the spill, however, it was largely 

the local jurisdictions who were responding to the incident. As of Friday, August 7, 

EPA still did not have a coordinated effort in Durango. In the absence of a Federal 

presence, local jurisdictions, including the Tribe, worked together as members of the 

Southwest Incident Management Team in coordinating a response. 

In accordance with the Tribe’s Incident Management Plan, Tribal Chairman 

Clement Frost issued a disaster declaration on Saturday, August 8. Other jurisdictions followed suit. In the days that followed the release, the Tribe attended to the 

needs of the tribal membership. The Tribe posted signs closing access to the Animas 

River on the Reservation, commenced bottled water delivery to affected tribal members, provided water tanks for affected livestock owners, commenced delivery of 

water for livestock (the Tribe commenced delivering water to the tribal membership 

when the EPA contractor delivered water that was not suitable for livestock consumption), held informational meetings with tribal members, and offered temporary 

housing for affected tribal member families. The Tribe also coordinated and supported EPA testing of tribal member domestic water wells and irrigation ditches in 

the impacted area within the Reservation. Subsequently, the Tribe purchased and 

installed 14 reverse osmosis systems on the kitchen taps of tribal member homes. 

For the duration of the response, tribal staff communicated, coordinated, and actively participated with personnel from other affected governments in the Unified 

Incident Command. The Tribe’s Incident Management Team was fully engaged in 

the Incident Command effort, which was headquartered in Durango, and worked 

closely with local, state and Federal agencies throughout the response effort. Tribal 

Incident Management Team members staffed the center virtually around the clock 

to ensure that the Tribe was contributing its expertise to the response effort, as well 

as to ensure that the Tribe was treated as an affected jurisdiction. The Tribe has 

since received acknowledgement and thanks for its participation, expertise, efficacy, 

and professionalism in responding to the incident, and remains engaged in the 

Incident Command to this day. 

The spill response highlighted the importance of relationships between state, 

tribal, and local governments. The state of New Mexico first learned of the spill on 

August 6 when the Southern Ute Indian Tribe’s Water Quality Program called New 

Mexico’s Spill Reporting Hotline. New Mexico had not received notification from either EPA or Colorado at that point. The County and City attorneys reached out to 

tribal attorneys to share information and meeting notifications that they knew had 

not been shared with tribal attorneys. The Southern Ute Indian Tribe coordinated 

with its sister tribe, the Ute Mountain Ute Tribe, which draws water from the San 

Juan River. Other downstream tribes in the lower Colorado River Basin, including 

Chemehuevi, Fort Mohave, Quechan, and Cocopah reached out to the Southern Ute 

Indian Tribe for information about the spill and the Tribe’s water quality sampling, 

which the Southern Ute Indian Tribe shared. 

Today, water quality monitoring results show the water of the Animas River on 

the Reservation has returned to pre-spill conditions and the River has been reopened for all activities. Our primary concern remains the potential long-term 

impact on human health and the environment caused by the deposition of heavy 

metals on the Animas Riverbed. 

THE TRIBE INCURRED SIGNIFICANT COSTS FROM RESPONDING TO THE SPILL BUT

EXPECTS FULL REIMBURSEMENT FROM EPA

For the period from August 5 through September 8, the Tribe incurred approximately $170,000 in costs responding to the spill, mostly in staff time. We understand neighboring community businesspersons suffered losses and our neighboring 

91 

local governments, La Plata County and the city of Durango, with whom the Tribe 

shares many interests, likewise incurred costs. Long-term, we expect to incur costs 

for continued water quality and sediment monitoring. The Tribe is working with 

EPA to enter into a Cooperative Agreement whereby the EPA will reimburse the 

Tribe for costs already expended, as well as future costs that will be incurred, including the costs of continued water quality monitoring. 

THE TRIBE’S WATER QUALITY DATA PROVIDED IMPORTANT INFORMATION FOR ASSESSING

THE SPILL’S SHORT-TERM IMPACTS AND CONTINUED MONITORING SHOULD PROVIDE

IMPORTANT INFORMATION ON LONG-TERM IMPACTS

The Tribe has long had an active water sampling and monitoring program, and 

for over 15 years has been monitoring water quality in the rivers that cross the 

Reservation, including the Animas. Before the Gold King spill, the Tribe’s Water 

Quality Program had been maintaining three stations in the River with equipment 

that continuously collects pH, oxygen, temperature, and conductivity data. EPA 

funds this monitoring through a Clean Water Act tribal assistance grant. In response to the spill, the Tribe’s Water Quality Program established additional monitoring stations and expanded the list of substances for which the Tribe tests. The 

Tribe tested before the plume hit the Reservation, and for 2 weeks after the spill, 

the Tribe was testing daily for over 25 substances, including aluminum, iron, silver, 

magnesium, arsenic, cadmium, selenium, zinc, lead, mercury, barium, and molybdenum. The Tribe has since resumed its routine monthly sampling of water quality, 

quarterly sampling of macroinvertebrates, and taking pH, oxygen, temperature, and 

conductivity readings every 30 minutes. 

On Thursday, August 13, 2015, the Tribe shared the water quality data it had 

collected on the Animas River since the spill. The data from the lab was encouraging. The Tribe assessed the results against tribal and state water quality standards, as well as historical data. Initial pH data showed no dip below pH 7.4 on the 

Reservation. Aquatic life prefers waters in the 6.5–8.0 range. The Tribe shared data 

with EPA, the state of Colorado, La Plata County, local officials, and community 

stakeholder groups. The Tribe also prepared and shared historical water quality 

data to provide information on pre-release—or normal—river conditions. 

The Tribe also has historical data regarding aquatic life in the River. Coincidentally, just 2 weeks before the Gold King spill, the Tribe had collected tissue samples 

from fish in the Animas River to conduct metals analysis on those samples. While 

the purpose of the testing was initially to assess potential human consumption concerns, the Tribe will continue to conduct these fish tissue studies to determine any 

toxicity impacts from the spill. This will allow the Tribe to assess the extent of bioaccumulation of toxins in the aquatic life in the River. 

The Tribe has been able to develop a highly successful water quality program, 

which has provided valuable support to the community in this response, due principally to EPA Tribal Assistance Program grant funding. We hope Congress and the 

EPA will see the benefits that the Tribal Assistance Program grants have provided 

to Indian Country and its surrounding communities and continue to appropriately 

fund these tribal grant programs. 

THE PROBLEM OF ABANDONED MINE DRAINAGE PREDATES THE GOLD KING INCIDENT, 

AND ADDRESSING THE PROBLEM IS COMPLEX AND EXPENSIVE

Like others, the Tribe favors a full evaluation of events leading to the spill and 

the EPA’s performance responding to the spill. We can all learn from mistakes made 

and, based on a thorough evaluation of the incident and response, hopefully, EPA, 

the Tribe, and other responders can improve emergency response preparedness. 

It is important to keep this incident in perspective and understand it points to 

a much larger problem, one that has been 100 years in the making. In the late 19th 

century, the discovery of valuable minerals in the San Juan Mountains led to widespread trespass on lands set apart for the Utes under an 1868 treaty. As a result, 

the United States negotiated another agreement with the Utes in 1873 that carved 

3.7 million acres out of the middle of the Ute Reservation. That agreement, along 

with the 1872 mining law, paved the way for hardrock mining in the San Juan 

Mountains, one legacy of which is mining-related pollution of the Animas River. 

The Gold King is not the only abandoned mine polluting the Animas River basin. 

There are many others, and reportedly many thousands of abandoned mines that 

similarly degrade water quality in rivers across the West. There are an estimated 

23,000 abandoned mines in Colorado alone. We hope that the new light being shined 

on the long-standing problem of acid mine drainage in the Animas River basin will 

cause interested parties to develop a permanent solution. 

92 

FEDERAL LEADERSHIP AND ASSISTANCE, AND COMMUNICATION, COLLABORATION, AND

COOPERATION AMONG DOWNSTREAM COMMUNITY STAKEHOLDERS AND FEDERAL, 

STATE, AND TRIBAL GOVERNMENTS, IS KEY TO AVOIDING ANOTHER BLOWOUT AND

ADDRESSING THE PROBLEM OF ABANDONED MINE DRAINAGE POLLUTING THE UPPER

ANIMAS RIVER WATERSHED

Without congressional support and Federal leadership, the problem of acid mine 

drainage polluting the Animas River and other rivers will not be solved. The Tribe, 

state of Colorado, local governments, and stakeholders need Federal assistance in 

exploring options for cleaning up the acid mine drainage problem, including possible 

Superfund designation for the San Juan Mountain area surrounding the Gold King 

Mine. The Tribe urges the committees to support continued dialog and collaboration 

and to provide direction in how the Tribe and other interested parties can help EPA 

respond to contamination threats, in order that EPA may fulfill its mission to protect, preserve and, where necessary, proactively remediate contamination sites that 

continue to threaten the Animas and other rivers. 

CONCLUSION

The Tribe, through its Incident Management Team and Water Quality Program 

has made a significant contribution to the response effort on the Gold King incident. 

Based on ongoing discussions, we anticipate EPA will reimburse the Tribe for its 

direct costs incurred responding to the spill. The Tribe hopes Congress will fund, 

and EPA will assist in providing support for, long-term monitoring for impacts 

caused by the Gold King Mine spill. We also hope Congress will support EPA continuing to work cooperatively with Colorado and affected tribes, local governments, 

and community stakeholders to develop a permanent solution to the acid mine 

drainage problem in southwestern Colorado. 

Thank you for the opportunity to appear before you today. I am glad to answer 

questions the committees may have. 

QUESTIONS SUBMITTED FOR THE RECORD TO THE HON. MIKE OLGUIN, MEMBER, 

SOUTHERN UTE TRIBAL COUNCIL

Questions Submitted by Rep. Grace Napolitano 

Question 1. Tribes have a special relationship with the Animas and San Juan 

Rivers. They withdraw water that does not have go through traditional water treatment before it is used to irrigate crops, water stock or be used directly by the tribal 

people. What specific actions has the EPA given Navajo Nation and the Southern 

Ute Tribal Council to ensure that the tribes are funded, supported, and worked with 

as required—in a nation-to-nation relationship—to track the impacts of this spill 

over the years it will take to move the sediment downstream? 

Answer. 

(a) On September 21, 2015, the Southern Ute Indian Tribe received an invitation 

from EPA Region 8 for a government-to-government consultation conference call regarding the EPA’s proposed monitoring plan titled, Draft Post-Gold King Mine 

Release Incident: Conceptual Monitoring Plan for Surface Water, Sediments, and 

Biology. The consultation call was held on October 7, 2015. 

(b) On October 8, 2015 the Tribe submitted comments to the EPA’s proposed monitoring plan. In addition to providing technical comments to the plan, the Tribe has 

also requested that the EPA agree to: (1) have the Tribe’s Water Quality Program 

perform the plan’s sampling and monitoring activities within the exterior boundaries of the Southern Ute Indian Reservation, and (2) expedite approval of the 

Tribe’s Application for Treatment in the Same Manner as a State for Purposes of 

the Water Quality Standards and Certification Programs (submitted to EPA on 

March 2, 2015) and the Tribe’s Water Quality Standards and Application for § 401 

Certification Authority, which are currently in development. 

(c) The Tribe is preparing to submit a Cooperative Agreement that will request 

payment of the Tribe’s expenses-to-date related to the Gold King Mine release incident, as well as future expenses related to long-term monitoring and recovery. After 

the spill, EPA sent contract and finance staff to Durango to meet with affected jurisdictions to discuss the cooperative agreement process, and those staff have followed 

up with the Tribe’s staff to see if the Tribe has any questions regarding the process. 

93 

Question 2. EPA has been working to fix this local issue that has been polluting 

the Animas River at a rate of approximately 330 million gallons per year. Has 

either tribe become aware of any short- or long-term effects on health, livestock, etc. 

from this polluted water? 

Answer. The Southern Ute Indian Tribe is currently not aware of any conclusive 

evidence of short- or long-term effect from these waters, however, there have not 

been any human health or toxicological studies conducted to assess these effects. 

Results from sampling of the water column appear to show no exceedances of primary drinking water standards for the analytes sampled in surface water, with the 

possible exception of the leading edge of the Gold King Mine Release contaminant 

plume. There has not been sufficient sampling performed to assess current or future 

impacts to groundwater resources or drinking water wells in the Animas River alluvium. There are concerns that remobilization of sediment may have an impact on 

water quality. The Tribe will continue to monitor surface and groundwater conditions along the Animas River for short- or long-term impacts and may recommend 

additional studies, if appropriate. 

The CHAIRMAN. Thank you very much. 

Dr. Wolk, you are recognized for 5 minutes. 

STATEMENT OF LARRY WOLK, EXECUTIVE DIRECTOR AND 

CHIEF MEDICAL OFFICER, COLORADO DEPARTMENT OF 

PUBLIC HEALTH AND ENVIRONMENT, DENVER, COLORADO 

Dr. WOLK. Thank you, Chairman Bishop, Chairman Chaffetz, 

Ranking Member Cartwright, and members of the committees. 

Good afternoon. My name is Dr. Larry Wolk, I am the Executive 

Director and Chief Medical Officer for the Colorado Department of 

Public Health and Environment. I appreciate the opportunity to 

share with you my testimony on behalf of the Department, regarding the water quality impacts from the recent Gold King Mine spill 

into Cement Creek and the Animas River near Silverton, Colorado. 

The Upper Animas River Basin has a long and storied mining 

history. As with many watersheds in Colorado, legacy mining in 

the basin has resulted in significant water quality impacts. For 

years, drainage from the numerous mining areas above Silverton 

has contributed heavy metal loads into Cement Creek, which 

eventually flows into the Animas River. 

Our Water Quality Control Division within the Department has 

routinely, but somewhat infrequently, sampled the water quality in 

Cement Creek and the Animas River as part of our Water Quality 

Program. These samples have consistently shown that the quality 

of the water in Cement Creek and the Animas River is, and has 

been for years, impacted by the mine waste coming from the legacy 

mines. 

The Gold King Mine is a historic gold mine located approximately 11,300 feet above sea level in the southwest mountains of 

Colorado near the town of Silverton. On August 5, 2015, an estimated volume of up to 3 million gallons of mine wastewater, containing dissolved metals and sediment, was unexpectedly released 

from the Gold King Mine adit into Cement Creek. Water Quality 

Division staff from my department almost immediately traveled to 

Silverton and the mine site to respond to and evaluate the water 

quality impacts from the release. 

Our staff took several surface water samples the week after the 

mine release throughout the river basin, from upstream of 

Silverton and down river from Durango to the New Mexico border, 

94 

over a period of 11 days, to determine the extent of the impact of 

the release. In total, our staff took 63 samples of surface water. 

Initial monitoring indicated levels of copper, lead, manganese, 

and zinc were higher than when previously monitored in June 

2015, prior to the release. By August 11, however, the levels of 

monitored metals in the Animas River had returned to pre-release 

levels. In Cement Creek, cadmium, copper, and zinc continued to 

be above the historic range for these metals. 

Throughout 2016, we will continue to monitor the level of metals 

in Cement Creek and the Animas River. At this time, we do not 

anticipate adverse health effects from exposure to the metals detected in the river water samples from skin contact or incidental 

and unintentional ingestion. 

Our water quality staff has also worked with our Division of 

Parks and Wildlife of the Colorado Department of Natural 

Resources to monitor the effects on aquatic life and wildlife. 

Assessments will continue, but, at this point, there appears to be 

no obvious impacts. There were no fish kills along the Animas 

River during the plume event, and there were no effects observed 

on terrestrial animals, such as ducks or mammals. 

Parks and Wildlife also placed fingerling rainbow trout in cages 

in three separate locations in the Animas River in Durango before 

the mine spill plume reached the city. Of the 108 fish placed in 

these cages, only 1 died, and the others remained healthy during 

the passing of the plume, and after the plume passed through the 

city. The one fish that died was not due to water quality. 

Long-term impacts from the effect of metals deposited in sediments will also continue to be monitored. These sediments may 

pose a risk, especially to aquatic life and fish during high-water 

events. We also understand there is concern about the risks to recreational users on the river. Sediment is just one indicator of the 

health of the river. There is some level of contamination in most, 

if not all, of Colorado rivers, because of past mining activities and 

the geology of the state. We do not anticipate adverse health effects 

from exposure to contaminants detected in the water and sediment 

during typical recreational activities. 

We also understand that, based upon current information, the 

Department of Agriculture believes the Animas River may be used 

for crop irrigation and livestock watering. We are unsure of the 

long-term impacts, but the spill at the Gold King Mine does not 

appear to have significantly affected or changed the water quality 

of Cement Creek or the Animas River. 

We are fortunate that the spill did not result in an immediate 

environmental disaster. However, this does not mean that Cement 

Creek and the Animas River have not already been impacted by 

prior damage from the legacy mines. 

The spill only serves to underscore the issues faced by many 

states, particularly in the West, where thousands of legacy mines 

affect the quality of our rivers and streams. High levels of acidmine drainage can have a detrimental impact on aquatic life. The 

Division of Parks and Wildlife has reported a noticeable decline in 

the number of trout in the Animas River over the last 10 years. 

Cement Creek and the Animas River are only two of many water 

bodies in Colorado that receive historic mine drainage. 

95 

In the interest of time, I will close my comments and be open for 

questions. 

[The prepared statement of Dr. Wolk follows:] 

PREPARED STATEMENT OF LARRY WOLK, MD MSPH, EXECUTIVE DIRECTOR AND

CHIEF MEDICAL OFFICER, COLORADO DEPARTMENT OF PUBLIC HEALTH AND

ENVIRONMENT

Chairman Bishop, Ranking Member Grijalva, Chairman Chaffetz, Ranking 

Member Cummings and members of the committees, good morning. My name is Dr. 

Larry Wolk, I am the Executive Director and Chief Medical Officer for the Colorado 

Department of Public Health and Environment. I appreciate the opportunity to 

share with you my testimony on behalf of the department regarding the water quality impacts from the recent Gold King Mine spill into Cement Creek and the 

Animas River near Silverton, Colorado. 

The Upper Animas River basin has a long and storied mining history, and as with 

many watersheds in Colorado, legacy mining in the basin has resulted in significant 

water quality impacts. For years drainage from the numerous mining areas above 

Silverton has contributed heavy metal loads into Cement Creek which eventually 

flows into the Animas River. The Water Quality Control Division within my department has routinely, but somewhat infrequently, sampled the water quality in 

Cement Creek and the Animas River as part of our water quality program. These 

samples have consistently shown that the quality of the water in Cement Creek and 

the Animas River is, and has been for years, impacted by the mine waste coming 

from the legacy mines. 

The Gold King Mine is a historic gold mine located at approximately 11,300 feet 

above sea level in the southwest mountains of Colorado near the town of Silverton. 

On August 5, 2015, an estimated volume of up to 3 million gallons of mine wastewater containing dissolved metals and sediment was unexpectedly released from the 

Gold King Mine adit into Cement Creek. Water quality division staff from my department almost immediately traveled to Silverton and the mine site to respond to 

and evaluate the water quality impacts from this release. Water quality staff took 

several surface water samples the week after the mine release throughout the river 

basin from upstream of Silverton and down river from Durango to the New Mexico 

border over a period of 11 days to determine the extent of the impact of the release. 

In total, the water quality staff took 63 samples of surface water. Initially monitoring indicated levels of copper, lead, manganese and zinc were higher than when 

previously monitored in June 2015 prior to the release. By August 11, however, the 

levels of monitored metals in the Animas River had returned to pre-release levels. 

In Cement Creek, cadmium, copper and zinc continue to be above the historic range 

for these metals. Throughout 2016, we will continue to monitor the level of metals 

in Cement Creek and the Animas River. At this time we do not anticipate adverse 

health effects from exposure to the metals detected in the river water samples from 

skin contact or incidental and unintentional ingestion. 

The department’s water quality staff also worked with the Division of Parks and 

Wildlife of the Colorado Department of Natural Resources to monitor the effects 

from the spill on aquatic life and wildlife. Assessments will continue, but at this 

point there appears to be no obvious impacts: there were no fish kills along the 

Animas River during the plume event and there were no effects observed on terrestrial animals such as ducks or mammals. 

The Division of Parks and Wildlife placed fingerling rainbow trout in cages in 

three separate locations in the Animas River in Durango before the mine spill 

plume reached the city. Of the 108 fish placed in these cages only 1 died, and the 

others remained healthy during the passing of the plume and after the plume 

passed through the city. The one fish that died was not due to water quality. 

Long-term impacts from the effect of metals deposited in sediments will also continue to be monitored. These sediments may pose a risk, especially to aquatic life 

and fish during high-water events. We also understand there is concern about the 

risks to recreational users on the river. Sediment is just one indicator of a healthy 

river. There is some level of contamination in most Colorado rivers because of past 

mining activities and the geology of the state. We do not anticipate adverse health 

effects from exposure to contaminants detected in the water and sediment during 

typical recreational activities. 

We also understand that based upon current information, the Colorado 

Department of Agriculture believes that the Animas River may be used for crop irrigation and livestock watering. 

96 

We can’t be sure of the long-term impacts, but the spill at the Gold King Mine 

does not appear to have significantly affected or changed the water quality of 

Cement Creek or the Animas River. We are fortunate that the Gold King spill did 

not result in an immediate environmental disaster; however, this does not mean 

that Cement Creek and the Animas River have not already been impacted by prior 

drainage from the legacy mines. 

The Gold King spill only serves to underscore the issues faced by many states, 

particularly in the West, where thousands of legacy mines affect the quality of our 

rivers and streams. High levels of acid-mine drainage can have a detrimental impact on aquatic life: the Colorado Division of Parks and Wildlife has reported a noticeable decline in the number of trout in the Animas River over the last 10 years. 

Cement Creek and the Animas River are only two of many water bodies in Colorado 

that receive historic mine drainage. 

Spills or blowouts, although typically not as large or dramatic as the Gold King 

spill, are not uncommon events in mining districts throughout the West. In Colorado 

millions of gallons of contaminated water are discharged from abandoned mines on 

a daily basis. Tackling the issues created by these legacy mines requires significant 

resources and raises liability issues. 

My agency is very familiar with the technical, financial and liability challenges 

of addressing environmental impacts from historic mining. In addition to our Water 

Quality Control Division, the Hazardous Materials and Waste Management 

Division, in my agency, actively partners with the Environmental Protection Agency 

to address such sites in Colorado. Unfortunately, the existing programs, regulations 

and funding are limited and do not provide us with the means we need to adequately address abandoned mine contamination in Colorado. Nonetheless, we will 

continue to work with the local communities affected by the Gold King Mine spill 

and with the EPA and others to identify potential next steps in addressing the legacy mine issues in the Upper Animas River basin and elsewhere in Colorado. 

Chairman Bishop, Chairman Chaffetz, and members of the committees, I hope 

that my testimony today sheds light on the water quality impacts from the Gold 

King Mine spill and on the need for additional attention to legacy mining issues 

throughout the West. I look forward to any questions you may have. Thank you. 

QUESTIONS SUBMITTED FOR THE RECORD TO LARRY WOLK, COLORADO DEPARTMENT

OF HEALTH AND ENVIRONMENT, EXEC. DIRECTOR AND CMO 

Questions Submitted by Rep. Dan Newhouse 

Question 1. According to EPA documents that have been made public, prior to the 

spill the concept of drilling into the mountain from above to take a pressure reading 

indicating the amount of water that was currently sitting inside the plugged Gold 

King Mine was discussed. The arguments against conducting the drilling were that 

it was too costly and would take too much time. Do you believe the EPA should have 

ordered this drilling in order to measure the amount of water in the mine before 

work began? How much would this drilling have cost and is this amount prohibitive 

enough to not to get such a pressure reading? 

Answer. While the state of Colorado’s usual practice is to investigate volumes and 

pressures where feasible, it is difficult to say whether EPA should have done so 

here. We do know that, given the geology, topography and location of the mine, it 

would have been with significant cost and delay. Such an assessment at that site 

would be technically very challenging due to expensive drilling techniques needed 

to drill in the loose rock, as well as the difficulty of angling into the mine workings 

given the steep landscape. The assessment would have taken 1 to 2 years to complete due to very short construction seasons in the San Juan mountain high country 

resulting in the likely need for two seasons. 

Question 2. If EPA had ordered this drilling into the mine shaft containing water 

at the Gold King Mine site to determine the amount of pressure, would it have 

prevented this blow out? 

Answer. Knowledge of volume and pressure could possibly have prevented this 

blowout, but that knowledge alone would not likely have prevented a blowout from 

occurring on its own at some point. It is also important to note that it is possible 

that the mine would have blown out during the time it took EPA to do the assessment and at a time when workers were not present and available to alert those 

downstream. 

97 

The CHAIRMAN. Thank you. Finally, Mr. Flynn. 

Mr. FLYNN. Thank you. 

The CHAIRMAN. You are recognized for 5 minutes. 

STATEMENT OF RYAN FLYNN, SECRETARY OF ENVIRONMENT, 

AND NATURAL RESOURCE TRUSTEE, STATE OF NEW 

MEXICO, SANTE FE, NEW MEXICO 

Mr. FLYNN. Thank you, Chairman Bishop, Chairman Chaffetz, 

members of the committees. Before I begin, I want to thank our 

representative from New Mexico, Mr. Pearce, who has been here 

the entire day. I know this is not part of your district, but you are 

a New Mexican, and I really appreciate your interest, as well as 

your willingness to stay all day. Thank you very much, Mr. Pearce. 

I am the Secretary of Environment for the state of New Mexico, 

as well as the Natural Resource Trustee for the state of New 

Mexico, and I was on the ground in Farmington, New Mexico, within 18 hours of receiving notice of the spill from the Southern Ute 

Tribe. 

Almost immediately after being notified, our governor, Susana 

Martinez, appointed an Emergency Response Team, which I had 

the honor of serving as the leader of for the 9-day ordeal that the 

state of New Mexico, as well as other downstream users, including 

the Navajo Nation and the state of Utah, was forced to endure as 

a result of the EPA spill on the Animas River. 

It has been said that pressure reveals true character, and I am 

extremely proud of the manner in which the state of New Mexico, 

as well as the local communities, responded to this event. New 

Mexicans demonstrated compassion, courage, determination, and 

grit throughout this 9-day ordeal. Having been there and in the 

community, I cannot underscore how frightened people were by the 

toxic plume that was traveling through the river. The river literally 

goes through the heart of these communities. It is the heart of the 

community in Farmington, in Aztec, and in the Navajo Nation. 

Without water at home, and with this toxic yellow sludge floating 

through the river in the center of town, people literally were confronted by the spill at home and outside. In the face of these circumstances, New Mexicans responded as I would have expected. 

They came together with a well-orchestrated and selfless plan to 

move forward and respond to the emergency at hand. 

In particular, I want to commend the efforts of the local officials 

from San Juan County, New Mexico, the city of Farmington, and 

the city of Aztec. From the very top to bottom, these officials responded admirably. They integrated themselves into our 

Emergency Response Team; and they took initiative and acted heroically throughout the process at all levels, from their leaders, the 

CEO, the COO of San Juan County, the mayors, all the way down 

the line. Their staff, from top to bottom, really were essential to 

this effort. 

I also need to compliment my staff. I had dozens of employees 

mobilized in the field. People literally were supposed to be dropping 

their children off at college that weekend; and because New Mexico 

needed them, they traveled hours from around the state to be there 

in Farmington during this ordeal to help. As the temperatures 

were well into the 90s on most days, we had set up a mobile lab 

98 

that I talk about in my testimony, and I had, literally, over a dozen 

employees out there from morning until late at night, working in 

very cramped and hot conditions in a makeshift lab. At no point 

did anybody complain, lose their temper, or do anything other than 

ask what more could they do—‘‘Can I stay an extra day? I have 

changed around my vacation plans, I will stay next week.’’ 

That was the type of response from my employees. I set a high 

standard for them, I push them hard, and I could not have been 

more humbled by their response, as well as the response of all of 

the other agencies from around the state. The Department of 

Agriculture, the state engineer, the New Mexico Department of 

Game and Fish, the New Mexico Department of Health, and the 

New Mexico Department of Homeland Security all performed admirably throughout this process. 

By Saturday, thanks to the state and local communities’ swift actions, we had been able to secure all the public water systems and 

private domestic wells in the area. We were able to preserve and 

protect our local agricultural resources. We had established direct 

lines of communication with downstream communities. We established teams with local farmers and ranchers to provide water for 

livestock. We had set up watering stations across the area, and we 

had deployed various teams of scientists to monitor the water quality and wildlife in the Animas River. We had also authorized emergency funding. 

Again, these swift, well-orchestrated activities are a testament to 

the local communities and the leadership at every level of the 

state. It is an honor, and thank you for having me here today. 

[The prepared statement of Mr. Flynn follows:] 

PREPARED STATEMENT OF RYAN FLYNN, SECRETARY OF ENVIRONMENT AND NATURAL

RESOURCE TRUSTEE FOR THE STATE OF NEW MEXICO

Chairman Bishop, Chairman Chaffetz, Ranking Member Cummings, Ranking 

Member Grijalva and other members of the committees, I appreciate the opportunity to testify about Environmental Protection Agency’s Animas Spill (‘‘Spill’’). I 

was on the ground within 18 hours of receiving notice of the Spill and did not leave 

the area until the Animas River was fully re-opened in New Mexico on August 15, 

2015. I served as the leader of Governor Martinez’s Emergency Response Team and 

my testimony is based on my personal experience and observation. 

The Spill occurred at approximately 10:40 a.m. on August 5, 2015, when contractors working under the direction of the Environmental Protection Agency (‘‘EPA’’) 

breached a barrier serving to contain wastewater within the abandoned mine. The 

breach caused millions of gallons of wastewater containing dangerous levels of sediment and metals, such as lead, arsenic and cadmium, to surge into Cement Creek 

before ultimately being deposited in the Animas River, which flows more slowly in 

the piedmont of northern New Mexico. 

The state of New Mexico (hereafter, ‘‘State’’ or ‘‘New Mexico’’) was first notified 

about the Spill at approximately 9:30 a.m. on August 6, 2015, when officials with 

the Southern Ute Indian Tribe contacted my staff. EPA did not contact any officials 

from New Mexico until 11:30 a.m. on August 6, 2015, more than 24 hours after the 

Spill occurred. 

Like other downstream communities, New Mexico was severely impacted by the 

Spill. San Juan County, the area in the New Mexico most directly impacted by the 

Spill, is home to approximately 124,000 people. Within it is the city of Farmington, 

with approximately 45,000 people, and the city of Aztec, with approximately 6,500 

people. Drinking water systems pulling from the Animas River serve both 

Farmington and Aztec. Additionally, there are five other small communities in the 

area who rely on the Animas River to meet their drinking water needs. The rest 

of the rural residents rely on domestic wells. 

Immediately following notification of the Spill, New Mexico took a series of 

aggressive actions to protect human health, notify local residents and downstream 

99 

communities about the situation, preserve agricultural resources, and collect 

contamination data. 

Within 12 hours of our notification of the Spill, New Mexico accomplished the 

following actions: 

• Established a multi-agency Emergency Response Team named by Governor 

Susana Martinez, led by the Environment Department and comprised of 

officials from the Environment Department, Health Department, Office of the 

State Engineer, Department of Agriculture, Department of Game and Fish, 

and Department of Homeland Security; 

• Contacted all seven of the public water systems diverting water from the 

Animas River and advised them to shut off their intakes until additional 

information was gathered; 

• Contacted officials from San Juan County, the Navajo Nation, the state of 

Arizona and the state of Utah to inform them of the situation and begin 

coordination of public communications; 

• Contacted local farmers and ranchers, and advised them to close irrigation 

ditches and to stop irrigating crops and watering livestock with water from 

the Animas River; and 

• Deployed a team of scientists to San Juan County who immediately began 

taking background samples of water at three different locations on the 

Animas River. 

Within 36 hours of receiving notice of the Spill, New Mexico accomplished the 

following additional actions: 

• Provided informational briefings for the public in Farmington, NM, and Aztec, 

NM, regarding the situation; 

• In conjunction with officials from San Juan County, closed the Animas River 

for recreational use; 

• In conjunction with officials from San Juan County, the city of Farmington 

and the city of Aztec, set up locations at fire stations and community centers 

throughout the area where residents could obtain free drinking water and 

take showers; 

• Issued health, hygiene, recreational, and livestock precautions for the 

communities; 

• Issued an emergency order authorizing up to $500,000 in emergency funds to 

conduct activities to respond to the spill; 

• Deployed two additional teams of scientists from the Environment 

Department to continue sampling surface water in the Animas River and 

started sampling private, domestic wells within the floodplain of the Animas 

River; 

• Deployed teams from the Office of State Engineer and the Department of 

Agriculture to work with farmers and ranchers to identify alternatives for 

watering livestock; and 

• Deployed a team from the Department of Game and Fish to monitor potential 

impacts on wildlife caused by the spill. 

By Saturday, August 8, 2015, when the spill had fully arrived in our communities, 

turning the Animas River from its usual dark brown to a bright mustard color, New 

Mexico had secured all of the public water systems and private domestic wells, 

worked with local farmers and ranchers to secure all of the local agricultural resources, established direct lines of communication with downstream communities, 

established teams to work with local farmers and ranchers to provide water for livestock, set up stations across the area where residents could receive free drinking 

water and take showers, deployed various teams of scientists to monitor water quality and wildlife in the Animas River, and authorized emergency funding to pay for 

our response activities. We also had a Web site up and running with real time information for the public regarding the spill, and we had organized a series of public 

meetings to educate and defuse fear by allowing residents to obtain information and 

ask questions of the on-the-ground experts present. 

The Spill had a devastating impact on our local communities. Thousands of 

residents were without water. The bright, mustard color of the Animas River inspired fear and anger in the local communities. Without water at home and with 

the mustard colored Animas River flowing directly through the center of Farmington 

and Aztec, people were literally forced to confront the situation every place they 

went. 

100 

1King, Jack, ‘‘Re: Farmington EPA water sampling.’’ Message to Ryan Flynn, 19 Aug. 2015, 

E-mail. 2Finley, Bruce, ‘‘Animas River spill ‘huge tragedy,’ EPA officials tell Durango gathering.’’ The 

Denver Post, 7 Aug. 2015. 

Over the next few days, New Mexico’s Emergency Response Team continued to 

deploy resources into the area in order to mitigate the impacts of the Spill. On 

Saturday, August 8, 2015, when EPA informed me they were having trouble getting 

the contracts in place to be able to deploy their mobile lab to the area, we went 

ahead set up our own makeshift mobile lab at the San Juan County Fairgrounds. 

In a little over 24 hours, the State mobilized all of the necessary platform and technical equipment as well as a dozen environmental scientists to the area and began 

setting up our own mobile lab so we could begin providing free tests for local residents the next day. The mobile lab was supposed to begin testing at noon on 

Monday, August 10, 2015. When I arrived at the mobile lab at 7 a.m. to help staff 

finish setting up, a large line had already formed as frightened residents waited to 

have their well water tested. We ended up opening the mobile lab by 8:00 a.m. that 

morning and essentially ignored the hours we originally posted for the rest of the 

week, remaining open and taking samples late into the night for the first few days. 

By the end of the week, we had tested 724 domestic well samples at the mobile lab 

and personally contacted every single person to discuss their test results. 

In addition, our scientists in the field took over 240 surface water samples over 

the course of the week. The men and women staffing the mobile lab and working 

in the field literally worked around the clock in cramped, hot conditions and never 

complained. Instead, they kept asking to do more or to stay longer. This sort of dedication and kindness was not uncommon during this emergency situation as New 

Mexicans from all over of the state rallied to help San Juan County. 

New Mexico re-opened the Animas River on August 14, 2015, about 9 days after 

the Spill occurred. While my testimony focused on the immediate actions taken by 

our emergency response team in the hours after being notified of the Spill, the closely coordinated effort described above continued throughout the 9-day ordeal. In particular, I must commend the efforts of San Juan County, the city of Farmington and 

the city of Aztec, who all played a huge role in the State’s emergency response effort 

and seamlessly integrated their staff members into our team. Local assistance, leadership and expertise were essential to this effort. And at no point during the 9-day 

emergency response effort did I ever witness any territorialism or in-fighting among 

the various state and local officials working on this effort. To the contrary, everyone 

understood the gravity of the situation and simply focused on performing their tasks 

at a high level. 

While New Mexico’s response was swift and well-coordinated, EPA’s response was 

slow and disorganized. For example, EPA waited until Sunday, August 9, 2015, 

4 days after the breach at the Gold King Mine and a day after the Spill had already 

arrived in New Mexico, to escalate the event to a Regional Emergency Operation. 

EPA also struggled to mobilize staff and resources to the area. For example, on 

August 18, 2015, almost 2 weeks after the Spill, EPA requested my agency to supply 

10 staff members to assist them with field work they wanted to begin performing 

at 8 a.m. the next day. At 4 a.m. the next morning, 12 staff members from my agency departed from Santa Fe to meet EPA in Farmington. When they arrived in 

Farmington 4 hours later, EPA was totally unprepared and stated ‘‘it was difficult 

for them to be ready in such short notice.’’ 1

EPA’s communication with New Mexico was also poor and at times counterproductive. Some of EPA’s communication problems have been well-publicized, such 

as the fact that they did not contact anyone from New Mexico for more than 24 

hours after the Spill. EPA’s efforts to initially downplay the Spill have also been 

well-documented and EPA was ultimately forced to admit that their initial comments were ‘‘not appropriate,’’ ‘‘not fully accurate’’ and ‘‘cavalier.’’ 2 However, a number of internal communication battles occurred behind the scenes. These internal 

struggles made it more difficult for my team to make important decisions and move 

forward with our emergency response efforts. 

For example, EPA repeatedly refused to share data with New Mexico for weeks 

after the Spill. Some of the data EPA refused to provide included results from surface water samples taken upstream of New Mexico. And when they did share such 

information, it was summary level data, cherry-picked and presented to create the 

appearance that Safe Drinking Water Act Maximum Contaminant Levels were not 

crossed, post event, specifically for lead. EPA also refused to share its sediment 

sampling plan with New Mexico for over 2 weeks. 

For the first 2 weeks after the Spill occurred, EPA blamed these communication 

breakdowns on poor coordination among the various EPA Regions involved in the 

101 

3There were three EPA Regional Offices involved in the Spill response effort: EPA Region 8 

covers Colorado, EPA Region 6 covers New Mexico and EPA Region 9 covers the Navajo Nation. 4Smith, Monica, ‘‘Re: sediment sampling—need your thoughts.’’ Message to Trais Kliphuis, 

21 Aug. 2015, E-mail. 

response effort.3 EPA’s Region 6 staff members repeatedly blamed EPA’s Region 8 

staff members for failing to provide information. Later, the finger-pointing gave way 

to new excuses, such as the difficulties posed by the size of the documents or the 

time constraints associated with EPA’s data validation policy. The most remarkable 

excuse for refusing to share information came on August 21, 2015, 16 days after the 

Spill, when an EPA staffer informed my staff that she was not authorized to provide 

sediment sampling plans, which we had been requesting for over 2 weeks, because 

the plans contained ‘‘business confidential information.’’ 4 These communication 

breakdowns hindered New Mexico’s efforts to understand the nature and extent of 

the contamination associated with the Spill and made it difficult to assess the adequacy of certain critical response actions undertaken by EPA, such as sediment 

sampling. 

While the immediate public health risks posed by the Spill have passed, it is too 

early to understand or even begin to quantify the long-term impacts of the Spill. 

Dangerously high concentrations of arsenic, cadmium, lead, and other heavy metals 

were released in the Spill and settled out as the wastewater traveled downstream, 

layering the bottom of the Animas River with contaminants. Every time there is a 

high flow, such as after a storm event or snow melt, the contamination will be 

mobilized and move downstream. 

Under the direction of Governor Martinez, New Mexico has formed a Long-Term 

Impact Team to monitor the Spill’s impacts on human health and the environment. 

The work of this Long-Term Impact Team will be critical to understanding the full 

extent of the damage caused by the Spill. We expect EPA to fund the work of the 

Long-Term Impact Team. 

Thank you for the opportunity to serve as a witness at this important joint 

hearing. 

QUESTIONS SUBMITTED FOR THE RECORD TO RYAN FLYNN, SECRETARY OF

ENVIRONMENT AND NATURAL RESOURCE TRUSTEE FOR THE STATE OF NEW MEXICO

Question Submitted by Rep. Dan Newhouse 

Question 1. It has been reported that the appropriate Federal agencies failed to 

notify stakeholders regarding the scope of the negative economic and environmental 

consequences of this spill. How has the EPA or the Department of the Interior failed 

to assist your state in responding to and assessing this disaster? 

Answer. Apart from agreeing with our request to discharge more water from 

Navajo Lake immediately following the Animas spill, the Department of the Interior 

(DOI) has provided zero assistance to the state of New Mexico and has not communicated with us at all. Moreover, the state has received no information from DOI 

about the ‘‘independent’’ investigation they are performing. For example, we would 

like to know the scope of DOI’s investigation and how they plan to go about performing this investigation. We would also like to know who will be performing this 

investigation and how we will be able to access all of the materials DOI develops 

through this investigation. Unfortunately, we anticipate DOI will simply provide a 

highly filtered investigation report and refuse to provide the state or the public with 

any of the other materials that were generated through their investigation. New 

Mexico believes the DOI investigation is fundamentally flawed because one executive branch agency investigating another is not truly an independent investigation. 

Moreover, the secrecy with which DOI is pursuing this investigation only serves to 

validate our concern that this entire investigation was intentionally designed to exonerate EPA for their actions. 

EPA has provided little assistance following this disaster and appears more 

focused on managing the negative publicity they have received. For example, New 

Mexico, in conjunction with the Navajo Nation, is working on a Long-Term 

Monitoring Plan to assess the long-term impacts associated with the spill and has 

requested EPA to fund our effort, which is supported by the local communities. 

Instead of supporting the state’s effort, EPA plans to monitor itself regarding the 

long-term impacts of the Animas Spill. In addition, the plan EPA put forward is toVerDate Mar 15 2010 08:36 Jun 15, 2016 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\FULL COMMITTEE\09-17-15 JOINT\96242.TXT DARLEN
102 

tally deficient, which is why we do not allow responsible parties to monitor themselves when they create environmental disasters. For example: 

• EPA’s plan does not appear to acknowledge that much higher concentrations 

of contaminants and sediment exist in Colorado and over likely many years 

of storm events and spring run off this will migrate to New Mexico and other 

downstream states. This may accumulate in New Mexico farming soils and 

low flow areas in the Animas River. EPA proposes only a single year of monitoring, which is irresponsible. 

• EPA’s plan does not propose any monitoring of heavy metals in irrigated 

croplands. 

• EPA’s plan does not contemplate any groundwater monitoring. 

We believe EPA needs to scrap this bad idea and support the plan the state is 

developing with local governments, public institutions and the Navajo Nation. EPA 

has not provided any support for the state plan and continues to move forward with 

their ill-conceived plan. 

The CHAIRMAN. Thank you. Thank you for your testimony. With 

the possible exception of your shout-out to Congressman Pearce— 

I do not want him to get a big head about this—he may be 

accurate, but that is beside the point. 

We are now going to turn to questions of the committee. We will 

start with Chairman Chaffetz for his questions. 

Chairman CHAFFETZ. Thank you all for being here; and to those 

most directly affected, our hearts and prayers go out to those people. We thank you for your willingness and your time to come testify today. I am going to focus—given that it is part of Utah’s Third 

Congressional District, affects a lot of districts and states, but, 

President Begaye, I want to ask you: the EPA Administrator said, 

‘‘The EPA has closely coordinated,’’ and she goes on, to include the 

Navajo Nation. What is your assessment of the close coordination 

of the EPA? 

Mr. BEGAYE. Thank you for the question. First of all, the coordination, if it means waiting 2 days before you are notified, I would 

not label that as coordination. 

The first time we had conversation was at a conference call on 

Friday afternoon, where EPA told us that the cleanup would take 

decades to complete. I was stunned by that statement, because I 

thought that, as EPA said before at a public hearing on Saturday 

evening, the next day they said that at the base of the mountain, 

the water was clearing up. Excuse me, that was Sunday afternoon. 

We had just returned from the mountain, and were taking photos 

of the river, and we went to the mouth of the mountain and looked 

inside. It was still very much the color of orange juice, very much 

yellow. 

I told the EPA person that this is what we saw, and the person 

that was answering the question to the public at that public forum 

in Durango, he said, ‘‘Well, I was told different. I was told that it 

was clearing up.’’ If that is coordination, and if that is what they 

thought, it was completely false. 

Chairman CHAFFETZ. What happened when you tried to go visit 

the site? Describe to us—and our time is short, we have to be 

quick, but what happened when you went to go visit the site? 

Mr. BEGAYE. We decided to go up there on Saturday—and to go 

up there on Sunday, but we decided to do that on Saturday. So, we 

started making calls to Region 6, or to the Denver office; and they 

103 

said, ‘‘Well, you can only go up to the first blockade, and that is 

it.’’ 

So we kept driving toward the location; and I told that individual 

that is on my staff, I said, ‘‘Call Region 9, see what they say.’’ So, 

they start talking to the person from Region 9. At that point, we 

realized that the regions were not talking to one another. 

As we got up to the mountain, we were given clearance to the 

blockade, and then they say, ‘‘You can only get down to the base, 

down to the bottom.’’ And you could not see very much of what took 

place. 

We proceeded to drive up—and it was not a really difficult drive 

up to the area—and I did not realize that the mouth of the mine 

was just a little ways further from where we stopped. I thought it 

was further up, so I jumped out of the SUV and started walking 

up the hill. When I got up to the top, that is where the mine was. 

We were first told we could only go up to the blockade, which is 

at least 2 miles away. You cannot see a thing, it is all tall pines 

and so forth, but it was through the other region, Region 9, that 

gave us a little bit more clearance to move a little bit farther up 

the stream. Even at that point, I did not realize that we were supposed to stop there. No one told me that was a stopping point, so 

I just kept walking, and no one said—— 

Chairman CHAFFETZ. I want to get the full accounting of this, 

but this is absolutely ridiculous. The President of the Navajo 

Nation is not allowed to go see what is happening to his people. 

It is a terrible embarrassment, and demands an apology, as well. 

The last thing that I have time for, explain this Standard Form 

95 and what was happening in the days after the spill to the people 

there in the Navajo Nation. 

Mr. BEGAYE. On that Sunday afternoon, I got a call and they 

were saying, ‘‘We are sending people. They will come and help you. 

They will be on the ground to assist you.’’ I was very thankful that 

EPA responded so quickly, and that they sent two people to help 

us monitor the situation. So they flew into Durango, they took a 

car down from there to Farmington on to Shiprock—that is what 

they told me. 

Later on, we discovered that they were in the communities up 

and down the river, giving out this Standard Form 95. We did not 

know that was taking place until one of the local officials in one 

of the communities called us up and said, ‘‘This is what they are 

passing out. What do we do with it? ’’ 

Our Navajo attorney general took a look at the form, and immediately caught the waiver language. I asked to see it, they explained what that meant to me, or what that meant to our farmers 

and our ranchers. So, we immediately put the word out. We got on 

the radio. Immediately I called the radio station and, in my Navajo 

language, explained to the people not to sign that form. I told them 

if you do, you are not going to get full compensation for the damages that you incurred. We did news releases, we put the word out 

there, some of the local papers ran that story on our behalf, because this was just a slap in the face, we felt that the EPA was 

trying to minimize the damage payments that they were going to 

make. That was our experience with Standard Form 95. 

104 

The CHAIRMAN. OK. We went over a little bit there, but I think 

we can handle it with this size of a panel. 

Mr. Cartwright, do you have any questions? 

Mr. CARTWRIGHT. Thank you, Mr. Chairman; and thank you to 

the witnesses for coming today: President Begaye, Councilman—is 

it Olguin? 

Mr. OLGUIN. Yes. 

Mr. CARTWRIGHT. Dr. Wolk, Mr. Flynn. Now, Councilman Olguin, 

you have testified that there are approximately 23,000 abandoned 

mines in Colorado. I mentioned earlier in this hearing today that 

the advocacy group Earthworks estimates that there are more than 

500,000 abandoned hardrock mines within the United States. 

Ranking Member Grijalva is not here, but his bill, H.R. 963, the 

Hardrock Mining Reform and Reclamation Act of 2015, would establish a hardrock minerals fund, funded as an extraction fee taken 

from the mine owners, the mine operators, for reclamation to 

repair and fix these toxic situations. 

President Begaye, would you support the establishment of that 

kind of dedicated fund, paid for by the mining industry that would 

be used to clean up abandoned hardrock mines? 

Mr. BEGAYE. Yes, Congressman Cartwright. Whoever caused 

these types of spills, they ought to be held accountable, whoever 

they are. And—— 

Mr. CARTWRIGHT. How about Councilman Olguin. Do you feel the 

same way? Would you support the establishment of a hardrock 

minerals fund, along the lines that Ranking Member Grijalva’s bill 

suggests? 

Mr. OLGUIN. Well, without reviewing it, just from the initial intake, I could see us probably supporting it, just from the standpoint 

of cleanup. 

Mr. CARTWRIGHT. OK, thank you. One thing I wanted to clear up 

for my own mind is to see if there is any disagreement among the 

panel. We had Dr. Wolk testifying that, by August 11, the levels 

of monitored metals in the Animas River had returned to prerelease levels, that there was no fish kill involved in this release. 

I wanted to get your take on that, President Begaye and Councilman Olguin. Do you agree with that? 

Mr. BEGAYE. Well, we do not put dollars before the health of our 

people, our land, and our water. In our own testing, Navajo Nation 

EPA has told us that there are high levels of metals, sediments, 

and contaminants that are unhealthy for our animals. So, we have 

become a dumping ground of wastewater, because the Animas 

River is quite different from the San Juan. The San Juan is slow 

moving; anything that comes down the Animas, because it is high 

altitude, gets into our slow-moving water, and that is where they 

settle. 

Mr. CARTWRIGHT. Thank you, Mr. President. 

Councilman Olguin, I think you testified that you knew about 

this spill that afternoon, because local officials had notified you; 

and that, because of that early knowledge, you were able to take 

steps to do testing before the plume hit the affected area that you 

are concerned with. Is that what your testimony was? 

Mr. OLGUIN. That is correct. 

105 

Mr. CARTWRIGHT. OK. So, what is your take on what Dr. Wolk 

says? Was there a fish kill? He says there was not. 

Mr. OLGUIN. Well, based on the collaboration, coordination we 

had there, that same information was reported to us; and we, as 

Southern Ute, do not have any information contrary to that. 

Mr. CARTWRIGHT. OK. Then he said that by August 11—6 days 

after the release—that the metals levels had returned to prerelease levels. Any basis to dispute that? 

Mr. OLGUIN. No, based on our testing, again, we came up with 

probably similar information, particularly with pH. 

Mr. CARTWRIGHT. OK. And either of you gentlemen, President 

Begaye, Councilman Olguin, do you support increased levels of 

funding to EPA in cleaning up problems like this into the future? 

Mr. BEGAYE. For the Navajo Nation, we have the expertise, we 

have the engineers, we have scientists running our Navajo Nation 

EPA. EPA can provide the funds, or whatever entity, whatever 

Federal agency can provide us the funds, and we can do our own 

cleanup, and we will do it in the way it should be done properly. 

Thank you. 

Mr. CARTWRIGHT. Councilman Olguin, do you support additional 

increased funding for cleanup? 

Mr. OLGUIN. Yes, we would. 

Mr. CARTWRIGHT. Thank you, gentlemen. I yield back. 

The CHAIRMAN. Mr. Grothman. 

Mr. GROTHMAN. Thank you. I have some questions for Secretary 

Flynn. I spent a lot of time in Wisconsin government, and I know 

how important it is for the EPA and the local—I guess you call 

your Department of Environment and Natural Resources—to work 

together. 

Go over some of the things you said before. When did you first 

hear about the spill? 

Mr. FLYNN. I heard about it on Thursday morning at about 9:30 

in the morning from the Southern Ute Tribe. Actually, I heard 

about it from a staff member who had just received notice from the 

Southern Ute Tribe. 

Mr. GROTHMAN. You did not hear about it from the EPA first? 

Mr. FLYNN. No. 

Mr. GROTHMAN. And how long was it after the spill first took 

place? 

Mr. FLYNN. It was about 24 hours when we received notice. 

Mr. GROTHMAN. By somebody other than the EPA? 

Mr. FLYNN. Yes. 

Mr. GROTHMAN. How did that delay affect your ability to 

respond? 

Mr. FLYNN. Well, it is difficult to quantify. When you are in an 

emergency situation, every second counts. EPA had initially put 

out some information regarding the velocity the plume was traveling in the river, which, based on their initial estimates, suggested 

the plume was going to arrive late in the night on Thursday, or in 

the very early morning hours of Friday. 

Based on that information, we began taking action, such as closing irrigation ditches. That information proved to be wrong. As a 

result of that incorrect information, we lost time where farmers 

106 

could continue to withdraw into their irrigation ditches to build up 

their supply when we did have to shut the river down. 

Mr. GROTHMAN. I do not know whether anything similar to this 

would have ever happened—anywhere near this horrible would 

have happened in New Mexico—but could you maybe compare that 

to how quickly you would have notified, say, adjacent landowners, 

or people downstream of a spill, if it was something that you were 

responsible for? 

Mr. FLYNN. Immediately, within an hour. I would have personally called—well, I can just tell you what we did here. We contacted the Navajo Nation, we contacted the state of Utah, we 

contacted the state of Arizona. We immediately contacted San Juan 

County and the local communities. That did not occur over hours. 

We did not have a phone call list that we needed to—I mean we 

drill emergency responses, we have a protocol that is in place, and 

we just move forward with our plan. And literally, within hours, 

we had notified all the downstream communities and had taken 

steps to immediately stop withdrawing public water systems from 

the river and other actions. 

Mr. GROTHMAN. I do not know that you have any employees that 

callous, but how would you have responded if, say, you found out 

one of your employees knew about an equivalent spill and just did 

not tell anybody about it for a day? 

Mr. FLYNN. They would be former employees. 

Mr. GROTHMAN. You heard the testimony that came before you. 

Do you want to comment in general on her testimony, or did you 

feel her testimony was what you would describe as an accurate 

recount of what you saw on the ground? 

Mr. FLYNN. Sure—yes, I do have a great amount of respect for 

Administrator McCarthy. I think one of the flaws, you know, hindsight is 20/20; but this was an issue that we raised immediately 

on the ground during the emergency, and is one issue or a couple 

of issues that we continue to face. 

I do think the Administrator is tenacious and absolutely holds 

herself to a very high standard. I do not think that the employees 

who were actually charged with managing the situation held themselves to that same standard. I think that the lack of involvement 

from headquarters actually hindered this effort, and there is a lot 

of infighting among—they chose to handle this as a regional 

emergency. They did not actually elevate it to a regional emergency 

operation, as I mentioned in my testimony, until the day after the 

contamination plume had already arrived in the state of 

New Mexico. 

I think that the reluctance of EPA headquarters and management to become directly involved in this certainly played a huge 

role in hindering our efforts. I do not think there has been close 

work with the state, or close collaboration. 

For example, just today I understand EPA is going to unroll a 

long-term monitoring plan. First of all, we have told them all along 

for the past couple of weeks that we have a long-term monitoring 

plan, and they should be supporting our plan, not developing their 

own plan in a vacuum, without consulting or collaborating with the 

state. 

107 

My time is almost up, or your time, sorry, sir, is almost up, so 

I—— 

Mr. GROTHMAN. Well, just leave it at that. 

The CHAIRMAN. Thank you. Are you done? 

Mr. GROTHMAN. No. 

The CHAIRMAN. We are a little bit—— 

Mr. GROTHMAN. Just one more question. 

The CHAIRMAN. I will give you 1 more minute. I have given the 

others 1 minute; go for it. 

Mr. GROTHMAN. Frequently, as we had kind of the same interaction in the state of Wisconsin—frequently you have situations in 

which the Environmental Protection Agency, or the local DNR, 

would deal with something. Do you think this country would be 

well served if, insofar as we could, we would give responsibilities 

for protecting our Nation’s resources to local and state natural resource departments, rather than the EPA? Do you guys feel, at 

least in New Mexico, that you seem to exhibit more of a sense of 

urgency or care about our natural resources? 

Mr. FLYNN. Absolutely. I think it is just human nature, that the 

people who actually live on the land, whose neighbors live on the 

land, who depend on the land, have the most skin in the game and 

are going to do the best job to conserve and manage those resources. So, we absolutely believe that states should be given 

strong deference. 

I think that when the Clean Air Act, the Clean Water Act—I 

think that Congress envisioned there to be a cooperative Federalist 

model when they adopted these statutes, and actually spoke to 

deferring to states on these decisions. I do not think that has been 

the case, certainly over the past couple of years in particular, on 

the Waters of the United States rule. That is an issue where New 

Mexico was among the coalition of states that did successfully sue 

and enjoin EPA in the North Dakota District. 

I do think states should have greater control over these 

resources, because we are in the best position to manage and understand their impacts. 

Mr. GROTHMAN. I agree with you, and we will see if we can do 

something about that. 

The CHAIRMAN. All right, now I am going to cut you off, even 

though you were answering one of my questions. I am going to 

break the rules again here. 

Mr. Pearce, let me come down to you before—I have a lot of questions for you. Let me go to the other members of our panel here. 

Mr. Pearce, you are recognized. 

Mr. PEARCE. Thank you, Mr. Chairman, and I appreciate that 

courtesy. 

President Begaye, you heard me try to get assurances that these 

Form 95s will, if they were signed mistakenly, or people were not 

sure—I did not get a clear answer from the Administrator. Maybe 

you understood it better. Just take my word that if they try to hold 

people to signatures that they did not know what they were signing, or they have tried to enforce waivers, then know that we will 

be a partner with you in that; and we will also work on individual 

cases, so it is not kind of a generality. Refer those people to our 

office, and we will stand side by side with them until we get that 

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answer. We have found that to be more effective than just writing 

a letter on behalf of something. 

Then also, with respect to the water that was released out of the 

Navajo Dam, just again understand that we will help push that 

question. That is going to be a significant question downstream. I 

am familiar enough with some of the agencies that I think you 

might have a lot of difficulty getting resolution to that. 

Secretary Flynn, thank you very much for the kind comments 

coming in, but your leadership in this, I really appreciate that. 

Now, we have heard testimony today that the spill at Gold King 

Mine does not appear to have significantly affected or changed the 

water quality of the Cement Creek or Animas. Is that something 

you would agree with, as they come into New Mexico, that basically 

this is no big deal? 

Mr. FLYNN. No, absolutely not. I agree that the pollution passed 

with the water column, and that was expected. Nobody has ever 

stated that the water quality would not rebound as the toxic plume 

moves through the river. 

The issue, which my colleague from Colorado did acknowledge, is 

what is left after that plume moves through the river. So, you have 

high levels of dangerous metals such as arsenic and lead, which 

have now been deposited in the sediment; and each and every time 

there is a stormwater event, or there is a spring runoff following 

snowpack, that contamination, that sediment, will become agitated 

and potentially mobilize those contaminants, and create a public 

health issue. 

There is also the—again, while the wildlife—I am sorry, I am 

speaking too long, but the water quality has rebounded. Again, the 

sediment that has been deposited, the impacts on wildlife— 

macroinvertebrates, in particular—are unknown, and will not be 

understood for years. 

So, while I agree that the water quality has rebounded to background levels, that is not really the issue. The issue is what was 

left over in the sediment that is now all along the river. 

Mr. PEARCE. New Mexico Tech, also known as Mining Institute 

in New Mexico, went into Colorado. If you back up the pictures on 

the screen one, they discovered those heavy metals that you are describing on the bottom of these rocks there, in the stream bed. And, 

the next picture shows they took a sample of that groundwater, 

which is right there. So, definitely the effects are in the groundwater. I think I share the President’s concern, and also your 

concern for the residents of New Mexico. 

Now, we heard from the Administrator that all of the processes 

were followed, that it is typical, Secretary, for you to be notified by 

someone different than the EPA when they were describing the 

process. And the question was that you were not notified; she said, 

‘‘That is the way that we do it. We use someone else to notify.’’ Is 

that your experience, really? 

Mr. FLYNN. No. 

Mr. PEARCE. OK. I did not think so. There were many things 

there. 

Can you describe that process of closing off the inputs? Again, 

you heard my questions to the Administrator, and she kept trying 

109 

to kind of give us bureaucratic doublespeak. So, can you describe 

the process that you all went through. 

Mr. FLYNN. Sure. Once we were notified about the plume, and 

we saw the pictures, had conversations with some of the people 

who were on the ground, and had witnessed what had occurred, we 

immediately contacted—there are seven public water systems in 

San Juan County that withdraw water from the river—we 

immediately contacted those systems and told them to stop diverting from the river. We did that unilaterally. That was done by the 

state without any consultation or coordination with EPA. 

After that, though, one of the EPA communication staffers from 

Region 6 did berate one of my communication staffers that we did 

not do a joint press release, or otherwise publicize that decision, because they felt like it was a lost opportunity to develop some positive publicity in response to the spill. I then berated the EPA 

regional office for wasting time getting into a public relations issue 

when we are dealing with an emergency. 

Mr. PEARCE. Dealing with the question. Mr. Chairman, if 

possible, I have one more question. 

Dr. Wolk, in your testimony you say, ‘‘Unfortunately, the existing 

programs, regulations, and fundings are limited, and do not provide 

us with the means we need to adequately address the abandoned 

mine contamination in Colorado.’’ If the funds were unlimited, 

what would the course of action be to remedy the problem? 

Dr. WOLK. Thank you, sir. I think it depends on the situation, 

because—— 

Mr. PEARCE. Well, if you have the situation we are facing right 

now, with the Gold King Mine, unlimited funds, what would the solution have been and would be? 

Dr. WOLK. I think there is a short-term solution to continue to 

treat the water and find more of a longer standing treatment 

facility solution that could go in place, and then remediation at the 

mine, itself. 

Mr. PEARCE. OK. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman, and thank the panel for 

sitting there for an extended period of time. 

Councilman Olguin, we had an opportunity to be able to visit 

just a little bit. The Southern Ute Tribe, Ute Mountain Ute Tribe, 

small communities in southwest Colorado; would you describe for 

us—When did the EPA reach out to you? I believe you had cited 

earlier you heard from the city of Durango. When did the EPA 

reach out to you? 

Mr. OLGUIN. Well, first off, let me just acknowledge and thank 

you for your leadership on this. 

EPA, to my knowledge, had not officially contacted the Southern 

Ute Tribe—and I am talking the Administrator—had not made a 

call to the tribe, the Chairman’s office, until this Monday, 

September 14. 

Mr. TIPTON. September 14. That is an extended period of time. 

Is that showing due respect to a governmental entity out of the 

EPA? 

110 

Mr. OLGUIN. In my opinion, when you look at the governmentto-government relationships and trust responsibility, that is way 

too long. 

Mr. TIPTON. Would you care to expand? I thought it was actually 

pretty impressive out of the Southern Ute Tribe being proactive, 

taking the initiative to be able to respond, and to be able to meet 

the needs of the community. Is there something that the EPA could 

maybe learn from you? 

Mr. OLGUIN. That is going to be hard to answer, because from 

our perspective, we really do not heavily depend on the Federal 

Government to do our work, to protect our interests. For us, you 

know, we always roll our sleeves up, get in the middle of it, and 

address our needs immediately. Then, of course, whatever information we gather, we do hire the best people, the most qualified people; and, of course, we deal with people that are not producing the 

level and quality that we expect, as well. So I think, if nothing else, 

it is definitely holding people accountable and responsible for 

actions. 

Mr. TIPTON. Great. President Begaye, I do want to applaud you 

for getting the word out on that Form 95. We had heard that, as 

well, and found it incredibly disturbing that the EPA was trying 

to be able to get a waiver for the Navajo Nation people in 

particular, to be able to respond and to be able to seek real responsibility and accountability out of the EPA. 

Dr. Wolk, I would like to maybe ask you a couple of questions. 

Do you think Colorado does a pretty good job, in terms of 

monitoring? We have engineers in Colorado, do we not? 

Dr. WOLK. Yes, sir, we do. Depending on the situation, we have 

water quality engineers, mine engineers, and we work collaboratively with the EPA and others to provide those resources so 

that, as you know, we have a Colorado solution. 

Mr. TIPTON. And we have a Colorado solution. Part of your job 

is to make sure that the people of the state of Colorado—and we 

obviously have a concurrent responsibility to our neighboring 

states, as well, that the water is going to actually be safe. 

Does it concern you when we hear that, as Chairman Bishop 

noted in follow-up to my question, that they have zero engineers 

at the EPA, that they were up working on a mine that they said 

had the high potential to be able to blow out? Would the state of 

Colorado have handled it that way? 

Dr. WOLK. It concerns me, but I am not sure that does not mean 

that engineers were not involved in some capacity. So not—— 

Mr. TIPTON. You are in the government. It is your job to have 

some actual oversight. Wouldn’t it have been prudent for the EPA 

to have had their engineers to be able to have the oversight, to be 

able to make some good choices before we had a catastrophe? 

Dr. WOLK. I do not know how they structure or operate, and 

whether they rely on other resources to provide that 

engineering—— 

Mr. TIPTON. But you would handle it very differently, as the 

state of Colorado? 

Dr. WOLK. As I said, our department has its own engineers, 

depending on the situation. 

111 

Mr. TIPTON. Right. You know, when we were talking—I would 

like to follow up on my colleague, Mr. Pearce’s, comments there. If 

you had an unlimited budget, what do we do, going forward, given 

what we have seen out of the Gold King Mine? Would you be supportive of a Good Samaritan legislation? 

Dr. WOLK. Well, I serve at the pleasure of the Governor, and so 

I am not sure it is my position to say, but I know the Governor 

and our congressional delegates in the past, and most of the western states, have been very active in trying to promote and support 

Good Samaritan legislation to help address these kinds of 

situations. 

Mr. TIPTON. Councilman Olguin, would you describe a little bit 

some of the challenges and the economics for us in maybe a little 

more depth that you are facing, as a Southern Ute Tribe, based off 

of the EPA spill, and how it is impacting us in southern Colorado, 

and for you, specifically? 

Mr. OLGUIN. Well, economic impacts for us, aside from any cost 

that we have incurred, is still to be determined, particularly when 

you have this particular area of Durango, Silverton, the Four 

Corners, southwest Colorado, and even New Mexico. You know, it 

is a tourist area. For us, some of our—well, our casino, as an example, the same people that visit Durango, possibly visit Silverton, 

the Four Corners, are the same people that visit us. 

Particularly, when you have the world news saying, ‘‘Here is a 

toxic waste site,’’ well, it scares people. People cancel reservations, 

cancel trips. The economy goes down, based on that. I think that 

is something we have to really look at, what really was our impact, 

when it comes to those economic events that happened because of 

the spill. 

Mr. TIPTON. Great. Thank you for being here. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you. Mr. Luja ́n. 

Mr. LUJA ́ N. Mr. Chairman, thank you so very much, and to you, 

Chairman Bishop, Chairman Chaffetz, all the members of both 

committees, for allowing us to be here, members that are not on 

this committee. I thank you so very much for holding this critical 

hearing. 

To all the witnesses here, I want to thank you for taking time 

away from home and responsibilities that I know are pressing, so 

that you can be here to testify on what needs to happen to make 

people whole; to make sure that there is adequate response and 

real communication between each and every one of you and the 

people that we are so honored to represent; and how we can prevent this from happening again in the future, where there are 

several pieces that we have been able to identify. 

I want to associate myself with the comments and questions that 

Cynthia Lummis, our colleague from Wyoming, shared with the 

line of questioning that was with EPA Administrator McCarthy, as 

well. 

One of the points I want to make, Mr. Chairman, I do not know 

if this has been shared, but there is a memo that came out from 

the U.S. Environmental Protection Agency Region 8 dated August 

17, 2015. If we may be able to submit this into the record? 

The CHAIRMAN. Without objection. 

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[The information follows:] 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8 

1595 Wynkoop Street 

Denver, CO 80202–1129 

Phone 800–227–8917 

www.epa.gov/region08 

August 17, 2015 

Ref: 8EPR–ER 

MEMORANDUM 

SUBJECT: Gold King Mine [REDACTION] 

FROM: On-Scene Coordinator [REDACTION] 

TO: Site File 

The following is a partial chronology of events from the Gold King Mine Release 

incident that occurred on August 5, 2015, and covers approximately the first 48 

hours of the incident. I was in the Denver EPA Office serving as phone duty officer. 

I received the notification from the National Response Center and found two related 

e-mails on the Region 8 RRC e-mail box (e-mails attached) from CDPHE. All other 

events noted below were based on conversations with others such as the EPA OSC 

at the mine site, EPA employees serving in the REOC during the subsequent days 

of the incident, conference calls with stakeholders such as La Plata County, and 

written information from EPA’s START contractor and an e-mail from personnel at 

the Colorado Division of Reclamation, Mining and Safety (DRMS). 

8/5/2015 

• Release occurs (10:51 a.m.). 

• Safety of on-site personnel is secured. 

• The road at the mine site was destroyed and the crew was trapped with no 

cell phone coverage. The EPA crew radios to an EPA ERRS contractor who 

was off-site to notify him of the situation. The contractor finds the DRMS 

team who was off-site. EPA and DRMS communicate via radio (approximately 

11:45 a.m.) and the OSC instructs DRMS to make notifications. 

• 11:50 a.m. The EPA OSC and the ERRS contractor response manager left the 

Gold King Mine on foot to get picked up and driven to an area with phone 

reception to notify authorities. The START contractor stayed at the mine adit 

area to monitor the mine for additional surges of water and to provide 

support to the ERRS operator rebuilding the road. 

• 12:20 p.m. The ERRS contractor began reconstructing the exit road from the 

site to help demobilize the equipment, vehicles, and personnel. 

• CDPHE is notified by DRMS (12:40 p.m.). 

• CDPHE makes notifications to Durango, San Juan Basin Health Dept., and 

water intakes, and notifications are complete by 1:39 p.m. The EPA Phone 

Duty Officer also notifies Colorado downstream water intakes (the same ones 

that CDPHE notified) later in the afternoon. The DRMS e-mail indicated that 

CDPHE was supposed to ensure agricultural users were also notified. 

• DRMS notifies the National Response Center (12:27 p.m.). The NRC makes 

notification to the EPA Region 8 phone duty officer. (NRC reports are automatically forwarded to a number of other agencies including CDPHE, 

Colorado Information Analysis Center, U.S. Department of Interior which includes the U.S. Fish & Wildlife Service, and others). 

• The DRMS e-mail states that they coincidentally met the San Juan County 

Sheriff as the release was flowing down Cement Creek at approximately 

12:47 p.m. 

113 

• There is an EPA and contractor team in the area for another project and they 

are familiar with Animas River sampling locations. They are diverted to the 

incident and begin collecting river water samples (first round collected at 

6 p.m., second round near midnight, another round the following morning). 

• The plume reaches Silverton. 

• EPA issues first press release (11:26 p.m.). 

8/6/2015 

• EPA Region 8 stands up the REOC (10:00 a.m.). 

• EPA Headquarters, Region 6 and Region 9 are notified (11:00 a.m.). 

• The Animas River is closed to recreational users (there was coordination with 

local agencies and ATSDR to make this decision at approximately 10:30 a.m.; 

EPA saw an official printed release later in the afternoon). 

• EPA Region 8 Acting Water Program Director confirmed that the State had 

notified water users the previous day. 

• The OSC met with the Town of Silverton at 11:00 a.m. He was also going 

to meet with La Plata County/Durango at 2:00 p.m. 

• EPA Region 8 conference call with the La Plata County Emergency Manager 

around 11:00 a.m. or so. He reported that major irrigation users had shut 

their head gates. 

• The Durango Treatment Plant is secure per reports from the EPA Water 

Program (3:45 p.m.). 

• Conference call with EPA Region 6 in the afternoon before 2:00 p.m. They 

reported that their Water Program had contacted New Mexico. 

• The plume reaches Durango (late afternoon). 

• EPA deploys an additional OSC, two START contractors, the ASPECT plane 

(Airborne Spectral Photometric Environmental Collection Technology), and 

Community Involvement Coordinator personnel (varied, beginning at 

12:30 p.m.). 

• EPA issued SitRep (approx. 3:30 p.m.). 

8/7/2015 

• ASPECT flyover (initiated at 7:30 a.m., found extent of plume at 8:30 a.m.; 

lat/longs received, map pending). 

• Coordination call with R6, R9 and HQ. Region 9 was planning to sample at 

the Navajo Reservation. 

• Preliminary results for sampling and monitoring is expected to be received on 

this day. 

• As of 8:30 a.m. the plume had not yet reached New Mexico. 

• OSC in the field reports that private residential wells were showing yellow 

color and requests ERRS support for alternative water (distribution began 

that evening). 

• EPA requests information from USGS regarding a stream gauge on Cement 

Creek and USGS reports that the release was larger than 1,000,000 gallons. 

• Region 8 receives a call from FEMA R8 because their tribal liaison was 

getting calls from the Navajo Nation and EPA Region 8 provided Region 9’s 

OSC contact info to FEMA. 

• EPA Region 8 holds call with the Region 8 Regional Response Team 

(including the U.S. Department of Interior from R6 and R8, and multiple 

Forest Service representatives). 

Attachments 

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96242.008.eps
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96242.009.eps 96242.010.eps
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96242.011.eps 96242.012.eps
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Mr. LUJA ́ N. What this states is the timeline associated with the 

communications that went to all the communities. What this states 

is that on August 5, 2015 at 10:51 a.m. the release occurs. There 

is then a series of other items. You have to get to August 6, 2015, 


96242.013.eps 96242.014.eps
118 

the next day, 24 hours later, where it states at 11:00 a.m. EPA 

headquarters Region 6 and Region 9 are notified. I am not even 

talking about the notification to the state of New Mexico, what 

happened up in Colorado, to the Ute Tribe and to the Navajo 

Nation. We have a problem here that has to be corrected. 

One of the areas—Secretary Flynn, I know I shared this with you 

yesterday, I have shared this with Secretary McCarthy, I mentioned this to my colleague, Mr. Tipton out of Colorado, as well— 

is for us, Mr. Chairman, to potentially look at the system that is 

put in place today for the Amber Alert System for abducted children, as well as the NATIONAL Weather System alerts when there 

is a system like this, so we have alerts on there. 

Do you think, Mr. Secretary, that that would be helpful in pushing out as much information as we can—Secretary Flynn and 

President Begaye, especially, as constituents? What are your 

thoughts there, if there would have been real time, instant notification? Would that have been beneficial? 

Mr. FLYNN. Congressman Luja ́n, absolutely. I think that is a 

great idea. 

Mr. LUJA ́ N. And, Mr. President, rapid communication, if there is 

an urgency like this, that did not occur, and we need to correct 

that. Is this something that would make a difference in being able 

to prepare for anything that may be coming our way? 

Mr. BEGAYE. Absolutely. It would help. In this case, we are the 

ones that took action to close irrigation gates, not the EPA. We are 

the ones that made those decisions based on information that came 

down to us. So, if we had received that quicker, we would have responded better and prepared better; and our people would have 

been ready, rather than being thrust into a state of uncertainty, 

yes. 

Mr. LUJA ́ N. I appreciate that. I also want to thank Councilman 

Olguin for our brothers and sisters up in Colorado at the Ute Tribe, 

for alerting many of the communities in New Mexico. It was 

through the leadership of being good neighbors that you alerted 

some of the neighbors in New Mexico, sir. So, to you and to the 

tribal leaders, just thank you so very much. 

Secretary Flynn and President Begaye, is there anything, as you 

sat through this hearing today—and I know it was a long one— 

with all the questions and testimony today and in the Senate, with 

the several hearings that you have heard, is there anything that 

is coming out of the EPA that you have concerns with, or that you 

heard today that you have concerns with? 

And what is it that we can do to make sure that there is someone from headquarters appointed, Mr. Chairman, from the EPA to 

be corresponding directly with the state of New Mexico, state of 

Colorado, the Ute Tribe, Navajo Nation as well, that you would like 

to see done that maybe we can convey? 

To give the rest of my time—I have a little bit under a minute. 

Mr. Secretary, if you could quickly jump on that, and maybe submit things in writing; then we will visit with the President of the 

Navajo Nation, so we can fulfill all of those requests, and make 

sure that we are able to convey that. 

The CHAIRMAN. I have been giving extra time. You have 2 

minutes. 

119 

Mr. LUJA ́ N. Thank you, Mr. Chairman. I appreciate that, sir. 

Mr. FLYNN. Congressman Luja ́n, I think that, based on a lot of 

the discussions and debate that I have seen, the real question that 

needs to continue to be pressed, which I have heard a lot of today, 

is what types of institutional reforms can we put in place, as a result of this incident. So, things like early notification, ways to improve that, I think that is really focusing on how we can evaluate 

the performance and move forward. 

I think there is a lot of PR and spin that is coming out to try 

to put a bow on this and move on, instead of really asking the difficult questions on institutional reforms; so that is a concern I 

have. 

I also have a major concern about the structure of the 

‘‘independent investigation’’ being conducted by the Department of 

the Interior. I do not truly believe that is an independent investigation. It would be difficult for me to investigate another member of 

my cabinet, working under Governor Martinez. I think that a truly 

independent investigation should occur, so that the great questions 

that will bring about institutional improvements can be asked, and 

we can make government work better. We all have a stake in 

government working better and learning from this. 

Mr. LUJA ́ N. Thank you very much. 

Mr. BEGAYE. Congressman Luja ́n, thank you for the questions. 

Number one, do not let this happen again—Superfund site, clean 

that thing up, do not let yellow water come down into our river 

again. 

Second, on Standard Form 95, we need the U.S. Attorney 

General’s opinion saying that that waiver is not final and you can 

continue to submit claims for damages. We need that opinion. We 

do not trust the word of Administrator McCarthy. We need a legal 

opinion from the U.S. Attorney General, so that we can feel much 

better about telling our people that they can continue to submit the 

form, and also that they be compensated continuously until all of 

this is resolved. 

Also, dilution is not the solution; and that is what the EPA’s 

term of cleanup is. It is not ours. They need to get out there, remove soil that is contaminated, remove that yellow soil from our 

land, and make sure that it is clean. Just diluting it by releasing 

more water from the dam is not the way to clean up the spill that 

has taken place on our land. Thank you. 

Mr. LUJA ́ N. Thank you and, Mr. Chairman, again, for the time 

and your thoughtfulness. I look forward to working with you to address all these issues. We need to get to the bottom of this. 

I am also working on a piece of legislation with my counterparts 

in the U.S. Senate from New Mexico that would ask and require 

for expeditious carry-out of the claims process, and for the establishment of those offices in these communities. That way, there can 

be technical assistance to the individuals that will be also asking 

for support there. 

So thank you so much, again, for the indulgence, Mr. Chairman. 

To the witnesses, thank you for your testimony and for being here 

today. 

The CHAIRMAN. Thank you; but we will not treat you seriously 

until you come back to the committee. 

120 

Mr. LUJA ́ N. Yes, sir. 

[Laughter.] 

The CHAIRMAN. Mr. Palmer, do you have questions? 

Mr. PALMER. Thank you, Chairman Bishop. Secretary Flynn 

made the point that, though the water levels rose, the plume 

moved downstream. When it receded and water levels returned to 

normal level, it left contaminated sediment. 

My question to the tribal leaders, Mr. Begaye and Mr. Olguin, 

is—does any of this impact any of the sacred places, places sacred 

to the Navajo Nation or to the Southern Ute Tribes? 

Mr. Begaye? 

Mr. BEGAYE. Thank you, Congressman Palmer. Pollen from corn 

is sacred to us. It is used for early morning prayers. It is used in 

ceremonies, extensively; and by the corn maturing quicker, it has 

hurt the pollen from germinating, from maturing. Our people are 

very concerned that they are not going to have enough pollen for 

their ceremonies, for their morning prayers, to be used in that way. 

Also, you have all of these plants that our medicine people use 

that grow along the river. Those are being tainted, and they are 

no longer wanting to gather these herbal plants that are used in 

ceremonies along the river. 

So, yes, it has definitely damaged that part of our culture that 

is sacred to us. 

Mr. PALMER. Mr. Olguin? 

Mr. OLGUIN. Well, I would have to say that, when we look at the 

Ute ancestors, those mountains were our homelands. So, I think it 

starts right there, when the mining industry came about and we 

were removed from that area. 

Where we are located now, the water is a sacred source of life 

for us—water produces life. That is one of the eight rivers that 

crosses the reservation; and, of course, we do have cultural sites 

along the river. We do not make those public by any means, but 

the people that live along the river, the tribal people, I mean, this 

is sacred in all aspects. 

Mr. PALMER. There really is not any way that you could put a 

price on the damage in that regard. 

Let me ask you this, and this question will go to the gentlemen 

from Colorado and New Mexico, as well; but I will start back with 

Mr. Begaye. Considering this in terms of your culture and what is 

sacred to you, if the EPA were to declare these Superfund sites, 

what would the long-term ramifications be in that regard? 

Mr. BEGAYE. For us, they need to clean up the mines that are 

up there; because if not, another blowout will occur, as we were 

told when we were standing alongside the person that actually was 

working the backhoe when the blowout occurred. He was saying 

there are other mines on the other side that are ready to blow out. 

So, we do not want that to occur again and again and again. And 

if it does, it will really hurt our sacred areas, our sacred plants, 

and our people’s lives will be disrupted continuously. 

Mr. PALMER. Mr. Olguin? 

Mr. OLGUIN. At this point it is probably going to be hard for us 

to say, but I guess cleaning up the river, cleaning up the water, it 

is of utmost importance. 

121 

Mr. PALMER. I will let Dr. Wolk answer next, and I have a final 

point, and we will be out of here. 

Dr. WOLK. Just on the notion or the decision to make it a 

Superfund site, it is a little bit more complicated, because the local 

community, obviously, has a very large voice in that, as well as the 

state. We have very successful examples of Superfund sites that 

have been restorative, and have a sustainability plan now going 

forward. So, it is certainly a viable option. 

Mr. PALMER. Mr. Flynn, Secretary Flynn? 

Mr. FLYNN. Congressman, I think Superfund sites certainly have 

a place in environmental cleanup. However, I do not think that 

Superfund is really designed to solve all of the problems. In fact, 

when you have a responsible party who is doing work, I think 

Superfund adds levels of bureaucracy that can actually slow down 

environmental cleanup projects. 

I think Superfund is most effective when there is not a responsible party who is actually there doing cleanup work. We have 14 

Superfunds in our state. It can absolutely be used effectively, but 

there is a huge fuel spill that we are cleaning up in our largest 

metropolitan area, where we have avoided designating it a 

Superfund site, and we have actually moved much faster by not— 

I do not think it would be appropriate to be a Superfund site, but 

we have a responsible party, and we have been able to get a lot 

more work done by not declaring it a Superfund site. 

Mr. PALMER. If the Chairman will indulge me just for a final 

statement here. My sense of this would be it would be beneficial 

to all of you to avoid a Superfund site because of what it is going 

to do, in terms of people viewing your tourist sites, property values, 

and things of that nature. 

I think the most important thing is something Secretary Flynn 

touched on and that, in the previous hearing, Congressman Bruce 

Westerman touched on—and that is making sure that whoever is 

dealing with the cleanup is qualified, that they have the engineering and technical expertise. You just do not send anybody out there 

with a backhoe to do this. 

Thank you, Mr. Chairman. I yield the balance of my time. 

The CHAIRMAN. Thank you. Let me—oh, Mrs. Lummis, do you 

have some questions for these witnesses before I do mine? 

Mrs. LUMMIS. Thank you, Mr. Chairman. I do. 

The CHAIRMAN. Go for it. 

Mrs. LUMMIS. I appreciate your accommodation. Thank you all 

for attending. I, of course, had an opportunity to ask Director 

McCarthy some questions this morning, and I would like to pose 

some of those same questions to you. I am going to start with Mr. 

Flynn. 

Could you explain to me how the EPA’s lack of communication 

affected your ability to respond? 

Mr. FLYNN. Sure. You know, Congresswoman, I guess I have already discussed kind of the short-term issues; but, really, the 

bigger problems occurred as we were working through the emergency. We were constantly having to fight to get information and 

data from EPA. You know, the more information we could receive, 

the quicker we could make decisions about when it would be 

122 

appropriate to start withdrawing water from the river again, for 

example. 

So, the lack of timeliness with respect to providing data—we had 

all kinds of excuses, but the bottom line is we just really needed 

that information in order to help develop a response plan. For some 

of these issues, we needed the supply of water for the public water 

systems; some of the smaller systems were extremely limited, so 

they had a couple days of reserve. In order to really make decisions, we had to be able to plan out 7, 10 days, just to mobilize people to actually put physical infrastructure in place to create an 

alternative supply, a backup resource. 

So, not having data in the first couple of days, and then continuing to have to make that fight, put us in a position where we 

had to take very conservative actions. In one case, we had to actually lay pipe and connect one system, because we were not sure we 

were going to be able to allow the system to withdraw from the 

river because of an absence of information. 

Mrs. LUMMIS. OK. Councilor Olguin—and excuse me if I mispronounced your name—welcome to our committee. Could you tell 

us generally how the disaster has affected the Southern Ute Tribe? 

Mr. OLGUIN. Well, generally, the way I can express it is, of 

course, we have to respond to it. First and foremost, we have to 

deal with the disaster by having to implement our emergency management plan and our team, and start incurring costs to address 

our needs for our membership. That is probably the biggest thing, 

that hit us right away. Of course, you never plan for a disaster, but 

when you do have the plan, it really kicks in. 

Mrs. LUMMIS. OK. President Begaye, same question. How has 

the disaster affected the Navajo Nation? Also, do you have any estimates at this point how much you think it will cost to fix it, to 

return you to the pre-spill condition? 

Mr. BEGAYE. It has really devastated our nation. Two hundred 

and fifteen miles of the river lies on our nation. A third of the population utilizes it in varying ways: ranching, medicine, and 

farming. 

Our farmers, when you look into their faces, and you stand 

alongside them, and they are telling you that they are still giving 

water to a melon that is this size—they know it is gone, I know 

it is gone—but they continue to give water to it, because it is like 

children, their family, a watermelon plant, a corn stalk, all of that. 

They are very closely connected to their farm, to their crops, in a 

spiritual way. It is very difficult to place a price on that type of relationship with nature that we have. 

So, it will be extensive, and we cannot at this moment put a 

price on it. We really are reluctant to do so in many ways, culturally; but we will do that, we will do so. 

Our people are hurting. And when you see EPA pulling out, and 

you have water tanks that are being pulled off, you have hay that 

is not being provided because of the spill that was caused by their 

workers, it is really devastating. At this moment, our nation is 

hurting. 

Mrs. LUMMIS. Has either tribe received any initial compensation 

for direct out-of-pocket expenses incurred by either tribe 

immediately after the incident? 

123 

Mr. BEGAYE. Navajo Nation, we have not received a single penny 

yet. 

Mr. OLGUIN. We have not received anything, but we are working 

with the EPA on a cooperative agreement to be reimbursed. 

Mrs. LUMMIS. So, you are working on something that is in the 

nature of ongoing compensation, or is the Federal Government demanding that it be a complete settlement, cutting off future reimbursement or compensation for injury? Has anyone approached you 

about those kinds of proposals? 

Mr. BEGAYE. Congresswoman, thank you. Our leaders in one 

community contacted our office, saying that there is a form being 

passed out by EPA workers—two workers—and we do not know 

what it is or whether we should fill this out or not. 

Mrs. LUMMIS. OK. 

Mr. BEGAYE. We got hold of one. The Navajo Nation Attorney 

General, who is also a graduate of Harvard Law, he reviewed it, 

looked at it, determined that this was a final settlement form, and 

that if they filled it out and were compensated, that was it. So I 

got on the radio in Navajo language, explained what it was to 

them, and everyone stopped filling out the forms. 

But, we need an interim form now. We need the Attorney 

General to give us a legal opinion. We will not take the word of 

Administrator McCarthy, that the compensation will continue. We 

do not believe that until we see it in writing, clearly spelled out by 

the Attorney General of the United States. 

Mrs. LUMMIS. My time has expired, Mr. Chairman. Thank you 

for your accommodation of my questions. 

The CHAIRMAN. You are welcome. Mr. Grijalva. You are the 

second-to-the-last question. 

Mr. GRIJALVA. Thank you, Chairman Bishop. To the Councilman 

and Mr. President, thank you very much for being here. The 

Navajo Nation is rightfully concerned and vigilant about contamination related to mining, given the legacy, and how members have 

suffered through the uranium contamination issues and other 

issues. So, Mr. President, your points are well taken. Cultural resources, sacred sites issues, are quite vital. The San Juan, and assurance that that flow is nurturing and not hurtful is essential. 

Reimbursement and the settlement of claims as they appear needs 

to be expedited. 

Earlier in the questions, one of my colleagues said that this incident is now causing distrust with the Federal Government, in 

terms of notification and consultation. I do not think it happened 

‘now’. This is a pattern, and I think that we need to codify how this 

notification happens into law. We need to codify how consultation 

happens with Native nations, so that there is a process and a 

checklist, that it is not left to somebody’s subjective analysis. That 

is the law, and that is what should be followed. So, I want to thank 

you for bringing that today. 

I wanted to ask Dr. Wolk. Describe, if you can, as quickly as you 

can, the condition of the Animas River over the past decade or so. 

Had the water quality been getting better or getting worse, as we 

look at that period of time? Or is that a possible question? 

Dr. WOLK. Thank you, sir. I think, over the past 10 years, the 

water quality has been gradually deteriorating, and that is using 

124 

as a resultant the decreased amount of fish in numbers, as well as 

certain species of trout, so mostly, as it relates to aquatic life. It 

has not deteriorated to the point of not being suitable for intake 

for drinking water or for use of recreational purposes or irrigation 

purposes, but certainly it has been deteriorating. 

Mr. GRIJALVA. The present 428 on the priority list, 428 sites that 

are being worked on, constructed, reclamation issues, that did not 

tell us. So, whatever a waiting list is is really hard to gauge; because until those are done with the resources available, more and 

more can be piling on, waiting for an opportunity to get on that 

priority list. 

I am glad for all the witnesses today. I wish that a representative of the National Mining Association would have been here, so 

that we could inquire as to what role the private sector should 

have going down the future, how they feel about extraction on public lands and a royalty attached to that extraction, so it goes toward those 428 and these incidents like what happened in Animas, 

and how it has affected communities across the board. 

In closing, let me say there was a ticking bomb, and that was 

the abandoned mines and the abandoned Gold King Mine that 

affected the Animas. People called the bomb squad. In this case, 

unfortunately, the bomb squad set it off when they were trying to 

diffuse it. My colleagues on the other side of the aisle today gather 

to attack the bomb squad. Our side of the aisle very urgently, with 

everyone involved, the states, the Native nations, want to work together to try to diffuse the other bombs we know are out there. 

That is what we are looking for in the future. 

I think, before we make the bomb squad the bad guys, let’s come 

to some conclusions as to how we go forward, dealing with a backlog and a catalog of similar situations across this country and 

across the West. 

With that, thank you very much, and I yield back, Mr. 

Chairman. 

The CHAIRMAN. Thank you. I have a series of statements and 

documents that I wish unanimous consent to put into the record. 

[No response.] 

The CHAIRMAN. And, hearing no objection, I get to do it. 

Let me be the last to actually ask a few questions to you. 

President Begaye, if I can start with you, has President Obama 

reached out to your tribe, called, talked to you, or visited? 

Mr. BEGAYE. President Obama has been silent. Similarly, he 

closed his door on the Navajo Nation in its greatest time of need. 

So, we have yet to hear from the White House. 

The CHAIRMAN. I also have—well, let me go on. Thank you. 

Now, let me clarify one thing. When you were prohibited from 

going closer to the site by EPA, that was on your sovereign territory, where they said you could not go any further. Is that correct? 

Mr. BEGAYE. This was up above Silverton, and it was on 

Colorado land. 

The CHAIRMAN. All right, thank you. That clarified it. 

Secretary Flynn, the EPA has asserted that they have sought to 

be transparent and work with states in supplying the information. 

Has that really been your experience? 

125 

Mr. FLYNN. Chairman, no. I think there is a lot of room for 

improvement by the EPA on this effort. I have a good graph, or a 

series of graphs, that I would like to show you and submit into the 

record. 

This first graph was actually developed by EPA on August 7, the 

Friday right before the plume actually hit New Mexico. This was 

based on information that EPA had taken from Colorado, just 

south of the spill. They quickly put this graph out with a message 

to the public as, like, a PR gesture. 

There are a couple notable things about it. The first is that— 

well, my scientists were insulted by this graph for a variety of reasons—the first was that it plotted all the metals on a linear scale. 

So, if you just look at the bottom, it looks like lead and cadmium 

are totally flatlined, like, zero; and you cannot really see, but the 

very bottom line is actually two metals that it is representing. They 

only provided dissolved metals when the EPA’s drinking water 

maximum contaminant levels are based on total not-dissolved 

concentrations. Also, the graph does not have anything about arsenic, which we knew was over 823 times the maximum contaminant limit at the time of the spill. 

So, if you look at that graph—and then I had a second graph 

that my staff actually developed, a second series of graphs that— 

I do not know if they are available on the record; but this is what 

would be a logarithmic graph, which is really what would be the 

scientifically valid way to present this information. 


96242.001.eps
126 

If you could go to the final graph, because this really illustrates 

a point. This is actually how you would represent the concentrations of lead, using the same exact information EPA presented in 

that first graph, that was EPA’s, where you saw lead just like it 

was right at zero, flatlining along the line. This last graph shows 

you the actual concentrations of lead from their data; and that 

orange line shows you what the maximum contaminant levels are 

in the Safe Drinking Water Act. 


96242.002.eps 96242.003.eps
127 

So, that was not done by any scientist. That was a PR stunt that 

was done immediately after the plume had hit, based on data that 

we repeatedly asked for and were not provided. I do not think any 

scientist at EPA had any hand in this, because it was so insulting 

to my staff that I just cannot imagine a scientist would be involved 

in this development. And, that was the first of a number of instances where I do not think EPA certainly was forthcoming with 

information. 

The CHAIRMAN. If those are not part of the record, we will make 

them part of the record under unanimous consent, as well. 

So, there are times that they provided you data in a way that 

is not really helpful. I am assuming there are also times when EPA 

would not provide you data, or important information, or excluded 

you from the response process? 

Mr. FLYNN. Yes, Chairman Bishop. On Friday, August 21—this 

was now well over 2 weeks after the spill occurred—we had been 

fighting back and forth for a copy of EPA’s sediment sampling plan, 

because like I said before, the plume moves with the water column. 

The water quality is going to rebound. But, really, the sediment 

sampling is what tells you what has been left over, and that is 

critical. 

So, we have been fighting with EPA, and my staff—this is on a 

staff-to-staff level—has been asking for this plan for weeks. On 

August 21, EPA claimed that they could not provide it because it 

contained ‘‘business confidential information,’’ and raised a number 

of other excuses. I was incredulous at that response; I just cannot 

imagine that. 

They had also claimed that they were concerned about New 

Mexico’s open records law. We have a very broad Public Records 

Act that does not contain the same degree of exclusions that EPA’s 

Freedom of Information Act allows; so, they were concerned about 

the breadth of our Public Records Act, and that we would be disclosing more information than would otherwise be required. 

Those are just a couple of the reasons, and I would be happy to 

supplement the record with documents, if—— 

The CHAIRMAN. So you guys are too transparent? 

Mr. FLYNN. Yes, that was essentially one of the concerns that 

was raised. 

The CHAIRMAN. Let me ask you about the Department of the 

Interior, the Forest Service, BLM, Park Service, BIA. What was 

their reaction? Could they have been more helpful? 

Mr. FLYNN. On Friday morning about 5:00 a.m., I was in the 

area and I did speak to some local staff, two people there. We had 

asked them to release more water from the Navajo Lake in order 

to help preserve two of the endangered species in the area, the 

Colorado pikeminnow and the razorback sucker. Those staffers 

were great; they kind of acted first without asking, my sense is 

they kind of just acted on their own. 

Other than that contact that we initiated right away, I would say 

Interior’s involvement was non-existent, other than seeing a press 

release that they are now investigating. And, I do not really understand what they are investigating, because the press release did 

not really provide a lot of information. 

128 

The CHAIRMAN. That was one of the reasons why we were hoping 

they would be part of the panel today—and they chose not to be— 

to ask those questions, like what are they actually planning on 

doing somewhere around here. 

Has EPA been any more straightforward with the issue of 

reimbursement of the cost to New Mexico? 

Mr. FLYNN. No. Last week, I was really taken aback when lower 

level staffers at EPA reached out to lower level—I am, obviously, 

just referring to the organization chart—these are non-management employees. EPA had made some contact to a couple of my 

staffers, as well as a couple of staffers from the homeland security, 

trying to gather information about the total costs that were expended related to this. And the Navajo Nation, as well as the state 

of New Mexico, the state of Colorado, the state of Utah, and others, 

are considering legal action. 

As an attorney myself, it was very surprising to me that they 

would seek to try to gather this information in that manner. I 

would expect that it would be done at a high level. I instructed my 

staff, and the Governor instructed all of the other staff, that communication needs to be flowing through leadership, at a kind of 

leadership level, and that we were not going to communicate in 

that way. It just seemed like kind of bad faith. As a lawyer, those 

are certainly not the tactics I would use in litigation, to kind of secretly or quietly try to reach out for info without contacting a 

management-level employee. 

The CHAIRMAN. Dr. Wolk, let me ask you as well—the EPA said 

that, as far as notification—I am glad that Mr. Grijalva kind of 

summarized that, the problem—that they could have done a better 

job in notification. Kind of a low bar, but did they actually notify 

Colorado, or was it you were fortunate enough to have somebody 

in Colorado who was at the right place at the right time that heard 

it? 

Dr. WOLK. Thank you, sir. We were fortunate enough to have a 

member of our State Department of Natural Resources there at the 

site, who activated our notification system in-state through our 

spill line. So, we were able to follow our protocol with regard to instate notifications for downstream users. 

The CHAIRMAN. So, what you really did is you got notification by 

serendipity. New Mexico did not know about it until the Southern 

Utes recognized that. Right? 

And the Navajo Nation, who actually notified you? 

Mr. BEGAYE. We were notified by the state of New Mexico. 

The CHAIRMAN. And then you notified Utah, as well? 

Mr. BEGAYE. Yes. 

The CHAIRMAN. And New Mexico. So, actually, when the EPA 

talks about their notification process, it basically was non-existent. 

They did not notify squat. It had to be done by other people doing 

that process. 

We do have one other Member that I think is—I am stretching 

here to see if I can get one other person to ask some questions. Is 

she coming? All right. Let me just kind of end and pontificate this, 

if I could. 

We also have had votes that are called, so we are going to end 

this very quickly. 

129 

I appreciate the notification. I want to also emphasize the fact 

that you have three districts of the EPA that are involved in this 

area. They also were very late in getting notified, the people on the 

ground doing that kind of work, they did not have a great notification process, either. 

So, as Congresswoman Lujan Grisham is getting ready, I will 

give her the last chance of asking some questions. 

Let me just say that I have tried to emphasize how frustrated 

that I am that the EPA insisted on having their own panel that 

consumed 3 of the 41⁄2 hours in which we have been here. I do not 

actually allow that in my committee, because I think it is important that the Administration—or any administration, actually—sits 

at the same table with those people over whom they make 

decisions. 

And had your testimony—which I think is riveting and far more 

informative than the last 3 hours—had your testimony been given 

at the same time, we could have had the chance of actually going 

back to Administrator McCarthy and maybe try to get at some of 

the root issues that are here. I think sometimes we are saying the 

same words, but we are not actually meaning the same words. 

That is extremely frustrating to me, and it is why I tried to emphasize that so significantly. And it is not just Ms. McCarthy, it is the 

entire Administration that believes they have to be separate, and 

have to go first. I find that arrogant, and I find that disgusting. 

So, I want to apologize for the fact that the four of you were cooling your heels for so long, because the testimony you have given 

and the questions that you have answered, I think, were fascinating. They would have been beneficial, not only for all of the 

Members who were here at the beginning to have heard, but it 

would be good for the entire EPA entourage who was here to actually hear the responses that you have given, because, in many 

cases, they are at sharp contrast with what EPA is telling us has 

or has not taken place. That is my last rant for the day. 

Ms. Lujan, I will recognize you for the last questions before we 

go vote. 

Ms. LUJAN GRISHAM. Mr. Chairman, thank you very much for 

your patience, and providing me the last word, if you will, which 

is actually quite an honor. I get to start by thanking the panel and 

by all of you being incredibly aware and involved in doing everything we can to help clean up, and also look at how we mitigate 

these kinds of issues in the future, and also address the long-term 

impacts. 

I have a couple of questions, and the first is actually to our own 

Secretary of Environment for New Mexico, Secretary Flynn. I am 

delighted to have you here, and I can tell you that—and I am sure 

the committee heard—you were very involved from the very beginning. As soon as you received notice, your office has been instrumental in assisting the EPA, but also New Mexicans, to address 

these issues and figure out what we do, going forward. 

And although the data is showing that the surface water 

contamination is now back to pre-spill levels, we know that the 

concentration of arsenic, cadmium, lead, and many other heavy 

metals actually settled to the bottom of the river; and they can be, 

130 

then, as a result, mobilized, depending upon a variety of factors, 

frankly, at any time. 

While I would love to control—and I am sure you would, too— 

the natural flow of rivers and sediment movement and weather 

conditions, I think it is critical that we prepare for the long-term 

environmental consequences and impacts. We need to continue to 

monitor and to collect data, and to do the research, so that we 

know that we are protecting the long-term environmental and 

health impacts for New Mexicans and the other states’ surrounding 

populations. 

Secretary Flynn, I know that you are working with a coalition of 

stakeholders. I want you to tell us a little bit more about that, and 

how I can help you make sure that you keep that coalition together 

to continue their important work. 

Mr. FLYNN. Congresswoman, first of all, thank you so much for 

your interest and all of your time. You have been extremely generous on every issue that we have ever worked on together. I really 

appreciate that, and I appreciate the question. 

I think we do it the same way that you and I have personally 

tackled some of these issues before, such as the fuel spill covering 

Albuquerque and Kirtland Air Force Base. The way that we have 

tackled that problem is by including local communities, including 

local expertise that we have available through our public institutions and our national laboratories, and by including local stakeholder groups. 

The state of New Mexico has developed a long-term monitoring 

plan with multi-agencies and multi-groups. We have a number of 

outstanding NGOs in the area, like the Animas Watershed Group 

and the San Juan Soil and Water Conservation District. We have 

the New Mexico State University, New Mexico Tech, and the 

University of New Mexico. We have Sandia National Lab, Los 

Alamos National Laboratory, as well as state resources. So, we 

have the expertise in our state, as you are fully aware of. It is how 

do we coordinate that effort and, most importantly, get it funded. 

So, I think we would like—— 

Ms. LUJAN GRISHAM. And your opinion, Secretary Flynn, is that 

if left to its own—and I understand that the financial implications 

for the Federal Government are significant, but it is their responsibility—that if we do not push for that issue, that there may not be 

those kinds of investments. Representing, as we both do, a very 

poor state, the notion that we can pick up a $200,000 or $300,000 

annual effort—and I may not get that number right, so correct me 

and clarify, please—that needs to be in their plan back to us, about 

how they propose to continue to monitor and assess the environmental and health impacts of the spill. 

Mr. FLYNN. Congresswoman, I think that their plan should be to 

support our plan. I really do not think the fox should be guarding 

the hen house here. They created the situation. We would never 

allow a private entity that we are regulating to do its own investigation of itself and accept those results. In order to really build 

public confidence in the outcome of the long-term monitoring plan, 

there needs to be an independent entity like, you know, multi—— 

Ms. LUJAN GRISHAM. Right. I am running out of time, and I 

totally agree with you. 

131 

I just want to make sure that I thank, again, President Begaye 

and your incredible work. I am very upset that the EPA took even 

longer to notify the Navajo Nation. I appreciate the work by our 

two Senators to look at notification legislation; and, because I am 

running out of time, perhaps the best thing is that I intend to support you. 

I think there will be many Members of Congress, and I hope it 

is a bipartisan effort, to require the EPA to have much better relationships and a government-to-government, recognizing the sovereignty of the Navajo Nation. You should expect from your Federal Government and the state that level of one-to-one collaboration, so that you have your plan, your efforts, and your own independent process; and that should be respected and supported, sir. 

You are welcome. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. I am sure private citizens hope that 

same thing will take place. Let me thank the four witnesses for 

being here. I appreciate the long distance you have traveled, for 

how long you have stayed here. 

Your written testimony is part of the record. Your oral testimony 

and answers to these questions were excellent. I appreciate the 

detail in which you did that. 

There may be other questions that Members may have of you. 

We will keep our record open for 10 days. If there are questions, 

we may ask for your written responses within that time period, as 

well. 

Again, we thank you for your testimony. I promise you that both 

committees are not going to let this issue go through the cracks. 

We are going to maintain it until we get some definitive answers 

and some changes before we go forward. 

So, with no other business, and without objection—and since I 

am the only one here, no one is going to object to it—this committee stands adjourned. 

[Whereupon, at 2:45 p.m., the committees were adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

PREPARED STATEMENT OF TODD HENNIS, PRESIDENT, SAN JUAN CORPORATION AND

OWNER OF THE GOLD KING MINE

Dated September 11, 2015. 

My name is Todd Hennis. I am the President of San Juan Corporation of 

Colorado, the owner of the Gold King Mine, and I would like to thank the committee 

for giving me the opportunity to submit testimony regarding EPA’s Animas spill on 

August 5, 2015. 

Specifically, I will describe the circumstances leading up to the Gold King Mine 

spill, my experience with the EPA before and directly following the incident, and 

the potential for a much more catastrophic incident in the future if a permanent 

solution addressing root causes is not implemented. In addition, I’ve included my 

support for responsible regulation of the mining industry and the importance of 

domestic mining to the United States. 

First, there are three mines that are critical to this testimony: the Gold King 

Mine, the Mogul Mine, and the Sunnyside Mine. 

San Juan Corp. owns both the Gold King Mine and the adjacent Mogul Mine. I 

have never mined either of those mines. The only work I’ve performed at the Gold 

King Mine has been at the explicit direction of either the Colorado Department of 

Reclamation, Mining and Safety, or the EPA to grade roads or restore ditching. San 

Juan Corp. has never worked on the Gold King portal. 

132 

Both of these mines are directly connected to the neighboring Sunnyside Mine 

owned by Sunnyside Gold Corp. which is now a subsidiary of Kinross Gold of 

Canada. 

THE ROOT CAUSE OF THE ANIMAS SPILL WAS APPROVED BY REGULATORS: THE SUNNYSIDE MINE

In 1978, mining operations in the Sunnyside Mine led to the collapse of an alpine 

lake into the Sunnyside Mine workings. This collapse caused 500 million gallons of 

water to rush out the American Tunnel of the Sunnyside Mine over 3 days. The incident led Sunnyside to treat the water that continued to flow from the lake and 

water created by general ground seepage in the Sunnyside Mine and which then 

flowed out the mouth of the American Tunnel. 

In 1996, Sunnyside and the state of Colorado entered into a Consent Agreement 

giving Sunnyside permission to place concrete plugs, or ‘‘bulkheads,’’ in the 

American Tunnel and a few other parts of the Sunnyside Mine in exchange for freedom from potential future responsibilities/liabilities related to the bulkheads. In addition the Agreement required Sunnyside to perform other cleanup projects in the 

San Juan Mountains. This was pollution trading in all senses of the term. The U.S. 

Solicitor General Office was copied on the settlement documents, and EPA was fully 

cognizant of the settlement. 

At the time of the Agreement, the Gold King Mine was a ‘‘dry’’ mine, which is 

to say, there was little to no water draining out of its portal. 

FIRST EVIDENCE OF LOOMING DISASTER AND REGULATOR DISINTEREST: 

THE MOGUL MINE

In 2000, a large flow of water started coming out of the Mogul Mine, and a U.S. 

Geological Survey person informed me that the water contained a very high level 

of fluorine, an element only found in the discharge water from the Sunnyside Mine. 

In 2001, Mr. David Holm, the director of the Colorado Water Quality Control 

Division (WQCD, which had negotiated the mine bulkheading plan with Sunnyside 

Gold Corp.) threatened me with an enforcement action over the Mogul Mine discharge. I informed Mr. Holm that the water was from Sunnyside, and that he and 

Sunnyside needed to find a solution to the problem. Mr. Holm told me during the 

second telephone call that he had persuaded Sunnyside out of the goodness of its 

heart to pay for bulkheading the Mogul Mine. I informed Mr. Holm that I would 

not agree to this without compensation for the loss of the Mogul Mine resources due 

to the bulkheading. Mr. Holm continued to threaten me with an enforcement action. 

By September 2001, the pressure from WQCD became so intense that I went back 

into the Mogul Mine to prove where the water flow was coming from, and I had 

a near fatality attempting to enter the Mine. Later that month, I and a Colorado 

Division of Mining and Geology employee entered the mine successfully. We determined the last 300 feet of the accessible part of the main drift had a large volume 

of water flowing down from the connection with Sunnyside, and the Mine floor was 

deep in orange metal precipitates. This 300 feet of drift had been dry and sandy 

in 1996. 

I then investigated historical records on the Mogul Mine and found two large 

World War II era exploration drill holes that connected the Sunnyside Mine to the 

Mogul Mine property on a U.S. Bureau of Mines map. However, Sunnyside denied 

any knowledge of the two drill holes. I also found a Simons Hydrosearch study commissioned by Sunnyside to justify bulkheading of the American Tunnel that stated 

a large flow of water would occur if there was an unknown direct connection 

through faults or other connections from the Sunnyside Mine to the Mogul Mine. 

By late 2001, it was clear that the Sunnyside bulkheading had failed and that 

the problem would only get worse as the level of the water pool rose in the 

Sunnyside Mine. My company received no help, encouragement or action from either 

the EPA or the state of Colorado in this matter. Rather I continued to receive 

threats of an enforcement action by the state against the water coming from the 

Mogul Mine portal. 

Consequently, San Juan Corp. filed a lawsuit in San Juan District Court alleging 

water trespass by Sunnyside into the Mogul property. My attorney asked me to contact the EPA and ask them to join this lawsuit. I telephoned Ms. Carole Russell of 

EPA Region 8 to ask the EPA to join the lawsuit and avert further environmental 

damage. Ms. Russell informed me that EPA would not consider joining the lawsuit 

under any circumstances. I told Ms. Russell that I would send a letter to her requesting EPA join the lawsuit. Ms. Russell told me explicitly, ‘‘If you send that 

letter, I will make you truly sorry.’’ In the face of this threat, I obviously did not 

dare send the letter. 

133 

Being a small company, I did not have the resources to pursue a lawsuit against 

one of the largest gold mining companies of the world (at that time Echo Bay Mines 

of Canada, acquired by Kinross Gold in 2004). I had to take the settlement proposed 

by Colorado WQCD and Sunnyside Gold Corp which included bulkheading the 

Mogul Mine. 

Since then, I have been raising the alarm about the growing danger created by 

the Sunnyside bulkheads as the water backup in the mountain continues to rise. 

This rising water is increasing the pressure on the bulkheads and is now much 

higher than assumed in their original design. 

I have raised this issue in direct calls to Sunnyside owner Kinross. I have also 

written and distributed documents, made presentations, and participated actively in 

public meetings. These meetings have been attended by representatives of Kinross, 

and by a wide assortment of regulatory agencies, such as: the EPA, Bureau of Land 

Management, Colorado Department of Reclamation, Mining and Safety, and 

Colorado Department of Public Health and Environment. 

STATE OF COLORADO SIGNS AWAY ITS RIGHTS TO REGULATORY ENFORCEMENT AGAINST

SUNNYSIDE

By 2002 the last bulkhead was installed in the American Tunnel, and in 2003 the 

Consent Decree issued by the state of Colorado was vacated. In vacating the Decree, 

the state signed way its rights to all future regulatory enforcement against 

Sunnyside. 

EPA MONITORS SITUATION

After the Consent Decree was vacated, the EPA monitored the situation by taking 

water samples. They also evaluated it for Superfund status, but it failed to meet 

the criteria. At any point in time, they could have pursued non-Superfund measures 

against Sunnyside Gold Corp. and its owners, but they did not. I can only assume 

they were more interested in working under a Superfund designation than they 

were in solving the problem quickly. 

CONDITIONS WORSEN: THE GOLD KING MINE

In 2005, I became the owner of the Gold King Mine through the resolution of a 

bad loan. The Gold King was well above the advertised maximum height of the 

Sunnyside Mine pool and should have been ‘‘dry’’ with negligible discharge of 

7 gallons per minute. What I didn’t know was that the Gold King discharge had 

increased to 40 gallons a minute. From that point in time until the EPA started 

work on the Gold King in 2014, the water flows steadily increased to approximately 

250 gallons per minute of heavily metal laden water. 

The metal content of this water show that the water is coming from the 

Sunnyside. In an estimated 98 percent of the mineralization in the Gold King Mine 

there is 1 percent or less base metal content. However, the water flowing from the 

Gold King portal was very high in the base metals zinc, cadmium, lead, copper and 

manganese. These are the metals that are present in very large quantities in the 

Sunnyside Mine. 

In addition, maps and public documents tell us that Sunnyside Gold Corp mined 

the 2150 vein of the Sunnyside Mine into the Gold King property in 1989–1991. 

These mine workings were left open and are now filled with the Sunnyside Mine 

pool water, which is now flowing either by faults, fissures, or drill holes. There are 

29 drill holes from the Sunnyside workings across the Gold King property or from 

the end of the Gold King 7 level toward the Sunnyside Mine. In addition, the end 

of the Gold King 7 level is only approximately 1,000 feet from the Sunnyside 2150 

vein workings. The fact is that the mountain that hosts the Sunnyside, Mogul, and 

Gold King Mines is a ‘‘swiss cheese’’ of faults, fissures, fractures and exploration 

drill holes. 

THE EPA USES COERCION TO GAIN ACCESS TO THE GOLD KING

In 2011 the EPA requested access to the Mogul, Gold King, and other properties 

that I own in the area. I refused for fear they would create a pollution disaster. This 

worry came from the fact that the EPA had illegally dumped thousands of tons of 

highly reactive mine dump material down the shaft of a mine I own in Leadville, 

CO. This material caused the metal readings in the water flowing through the 

Leadville Drainage Tunnel to skyrocket. 

On May 12, 2011 the EPA issued ‘‘Administrative Order Directing Compliance 

with Request for Access, CERCLA Docket No.: CERCLA–08–2011–0008’’ against 

134 

Todd C. Hennis, San Juan Corp., and Salem Minerals Inc. The Order called for fines 

up to $37,500 per day as long as I refused them access. 

I had to surrender and grant access to the properties to the EPA, together with 

EPA taking environmental and operational management of the sites. The Access 

Agreement has been renewed at least twice and expires December 2015. I now have 

approximately 10 settling ponds created by the EPA over three locations on my 

lands, with unknown environmental consequences. 

EPA WORK BEGINS IN EARNEST ON THE GOLD KING AND DISASTER STRIKES

In 2014, the EPA started to work on the Gold King portal and then they stopped 

work due to the coming of winter. The EPA placed a very large amount of rock and 

dirt over the Gold King portal to prevent a ‘‘blowout’’ during the winter. I believe 

they blocked off the discharge pipes at that time, which caused a large amount of 

water to back up behind the backfill. 

When the EPA resumed their work in August 2015 the backed up water blew out, 

sending 3 million gallons of metal laden, orange water downstream in a rush. 

While the emergency team on site has been doing a good job addressing the blowout, the situation should never have occurred in the first place. Contrary to previous 

EPA testimony before another congressional committee, the blowout was not an act 

of nature. It was an act of man, specifically created by the actions of the EPA at 

the Gold King site. 

CURRENT SITUATION

The Gold King water flows now appear to have increased to 600 gallons a minute 

as a result of the blowout. I believe the sudden release of the water from the Gold 

King portal caused a flow to further open a fault connecting the Sunnyside and Gold 

King workings, by eroding the clay in the fault and increasing the flow directly from 

the Sunnyside Mine into the Gold King 7 level workings. 

As the EPA Access Agreement expires in December, 2015, I am attempting to 

negotiate a full settlement agreement with the EPA to lease them the latest site 

of the settling ponds to treat Gold King and other potential waters for a period of 

time. 

In addition, I see increasing environmental danger caused by the bulkheading of 

the Sunnyside Mine. The waters of the Sunnyside Mine appear to have risen to at 

least twice the height of the mine pool for which the Sunnyside bulkheads were 

originally engineered. I am very fearful that the estimated billions of gallons of 

heavily metal laden waters impounded behind the bulkheads could be released by 

a bulkhead failure due to a seismic event or just from hydrostatic pressure. If such 

a release happens, the water volumes could be on the order of 1,000 times greater 

than the water released by the EPA at the Gold King. The effects on the Animas, 

San Juan and Colorado River systems would be catastrophic. 

THE SOLUTION

The only solution to the environmental problems created in the American Tunnel 

of the Sunnyside Mine is for the EPA, the state of Colorado, and Kinross to admit 

that bulkheading the American Tunnel has been a failure. They need to carefully 

draw down the Sunnyside Mine pool and to treat the water resulting from the 

drawdown. 

In addition, a great deal can be done to prevent water inflows into the Sunnyside 

Mine, using common industry practices in use since the 1990s. 

IN SUMMARY

The EPA has known all of this from 2001–2002. Instead, they allowed the state 

of Colorado to enter into a pollution trading settlement with Sunnyside Gold Corp., 

and they allowed this situation to steadily worsen over time. I almost lost my life 

due to the waters from the Sunnyside Mine Pool, and EPA was lucky no one got 

killed in the August 5 blowout they triggered. We might not be so lucky when the 

bulkheads ultimately fail at the American Tunnel. The damage to the Colorado 

River system and the downstream users has been catastrophic. 

IN CLOSING, MY PERSPECTIVE ON REGULATION

In spite of this story of disaster, I am a believer in responsible enforcement of 

responsible regulations. More regulation would not have prevented the Gold King 

blowout. Proper action by either the state of Colorado or the EPA against Sunnyside 

Gold Corp. would have prevented the situation in the first place. 

135 

I include this perspective in my statement because it is imperative that the 

United States retain access to its strategic mineral resources. Today, American industry is heavily dependent on strategic metals imports, including the green tech, 

high tech, and national defense industries. To make matters worse, most of those 

imports come from China. We can’t afford to shut down mining in this country. The 

Gold King may contain the largest, most accessible source of the metal tellurium 

in the United States. Tellurium is the fifth rarest metal on the planet and is the 

critical element for thin film solar panels and other applications. 

This concludes my testimony as president of San Juan Corporation, owner of the 

Gold King and Mogul Mines. 

Task Order Statement of Work 

EPA Region 8 ERRS Contract No. EP–S8–13–02 

Environmental Restoration, L.L.C. 

06/25/14 

Name: Gold King Mine 

Task Order No. 051 

Site Name: Gold King Mine 

Superfund Site ID (SSID): 085M (OU01) 

Federal Project Number (FPN): Not Applicable 

City/County/State: Twp. 42N, R7W, NMPM, San Juan County, Colorado 

Removal Type: Time Critical Removal 

Funding Source: Removal Assessment 

Anticipated Start Date: 07/07/2014 

Anticipated End Date: 12/01/2014 

The conditions at the Gold King Mine present an endangerment to human health 

and the environment and meet the criteria for initiating a removal action under 40 

CFR section 300.415(b)(2). All activities directed by EPA’s On-Scene Coordinator 

must remain consistent with The National Oil and Hazardous Substances Pollution 

Contingency Plan (40 CFR 300). 

Background 

The Gold King Mine location in Twp. 42N, R7W, NMPM, San Juan County, 

Colorado is characterized by a mine discharge that is a significant contributor of 

manganese, copper, zinc and cadmium into the Cement creek drainage of the 

Animas River watershed. 

The Gold King Mine has not had maintenance of the mine working since 1991, and 

the workings have been inaccessible since 1995 when the mine portal collapsed. 

This condition has likely caused impounding of water behind the collapse. In addition, other collapses within the workings may have occurred creating additional 

water impounding conditions. Conditions may exist that could result in a blow-out 

of the blockages and cause a release of large volumes of contaminated mine waters 

and sediment from inside the mine, which contain concentrated heavy metals. 

The Division of Reclamation, Mining and Safety (DRMS) performed work under a 

bond to stabilize the existing adit opening to allow mine water drainage. The flow 

exits the mine through a culvert pipe and enters a concrete flume on the waste 

dump surface and flows to half pipe culvert eventually discharging to the North 

Fork Cement Creek. The existing conveyance channel shall be protected and maintained during the work. If it becomes necessary to remove these drainage features, 

then suitable measures must be installed to control flows during the work. A 

replacement conveyance system is required to be installed after the portal and underground work are completed. 

It is proposed to re-open the Gold King Mine portal and workings to investigate the 

conditions to assess the ongoing releases. This will require the incremental dewatering and removal of such blockages to prevent blowouts. The work is intended 

to take place in September–October, 2014. 

In addition, the secondary purpose of the work is to attempt to identify and characterize specific water flows into the mine and evaluate potential means to mitigate 

those flows if possible. 

136 

Objectives 

The work will be conducted by qualified contractors with the assistance and 

cooperation of the landowner, San Juan Corp. In addition to compliance with applicable OSHA standards, the work is to be conducted in compliance with appropriate 

Mine Safety and Health Administration (MSHA) regulations inclusive of establishing a safe underground working environment for personnel and the rehabilitation of underground workings and escapeways. (Note: MSHA regulations are not 

applicable to inactive mines; however certain standards are relevant to the propose 

work.) 

All work will be performed under the conditions as described in an approved Work 

Plan to be submitted to the OSC for approval that will be prepared by the 

Contractor and submitted to the Agency before mine rehabilitation work begins. 

The purpose of this Removal Work is to complete the following tasks: 

Site Preparation: 

Roadways and staging areas will be prepared to allow for safe access to the work 

area for heavy equipment and vehicles. Building debris and structural hazards will 

be removed or secured to eliminate physical hazards associated with such. 

Water management systems will be set up and operational before any construction 

work begins. Initial measures must include standard best management practices 

(BMPs) for stormwater run-off along roads requiring improvement. Mine water 

management is required to prevent additional impacts from release during performance of work under this scope. Appropriate plans to manage the water must be 

developed and included in the work plan. 

Portal Rehabilitation: 

Engineering specifications and geotechnical assessment of the structural requirements to stabilize the portal structure and underground support systems must be 

provided. The appropriate engineered specifications must be developed including 

typical designs for structural support systems (e.g., steel sets, and arch supports 

and timbers), identify the materials and construction requirements for structural 

supports. In addition, specify the anticipated approach for removing overburden, debris and re-establishing a safe structure that can be used for entry and egress and 

secured when not in use. This includes installing a portal gate with a secured 

locking system. 

Measures will be taken to control water and metal precipitate sludge and sediment 

that are impounded behind any blockage at the portal or in the mine. This will 

include the treatment of surge water discharge as necessary to prevent an uncontrolled release and impact to surface water. 

Underground Work: 

Adit rehabilitation includes removing the collapsed structures and colluvial overburden blocking the historic adit opening. This must be performed by an experienced 

contractor with required mine safety training for working underground. Standard 

measures for communication, ventilation and power will be provided for crews as 

necessary. 

Collapse blockage material removal will be performed in a controlled manner in 

order to control the rate of release of water and allow for appropriate treatment and 

sludge management. This is to include the ability to pump water from behind the 

blockage and lower the water level in a controlled manner before the blockage is 

destabilized by removal of material. 

This scope includes the plan to rehabilitate as far in as 75 feet inby of the portal 

opening. Underground conditions are uncertain, and the amount of blockage is not 

known. The initial objective is to establish a portal shed structure for safe access 

to the underground workings and continue rehabilitating the workings as needed for 

75 feet, if this is determined possible. Beyond that point, a determination will be 

made as to what additional work is required to allow safe access into the mine. As 

determined appropriate by the OSC, work may continue on an incremental basis to 

install the necessary structural supports as specified. 

All materials and equipment necessary to implement this work will be present on 

site and inspected before operations are initiated. 

137 

Water Treatment: 

A temporary water retention and sludge management pond must be prepared and 

operated, as necessary, on site to manage mine water and sludge removed from the 

adit. This will be used to manage impounded mine water and base flows and metal 

precipitate sludge from the mine workings during the construction activities. If necessary, water treatment may include pH adjustment and flocculent to assist precipitation/settling of elevated metals levels to meet existing water quality in the 

discharge from the mine. (The START contractor is responsible for overseeing the 

water treatment operations and for all environmental data, including sampling, 

associated with the water treatment objectives and activities.) 

Site Stabilization: 

The site work area must be graded and appropriate erosion control measures must 

be in place before demobilizing. This will include appropriate BMPs for construction 

site stormwater controls and post construction stabilizations. These are to be specified in the Work Plan submitted to EPA. 

Reporting 

A final report is required to include a description of the work performed with 

detailed information on the distances underground accessed and the number of 

structures installed. A description of all materials used in the support structures 

and quantities of material removed and locations where it is placed are required. 

List all the equipment used and personnel involved in the operation. A description 

of the water management system is also to be included. The report is to be provided 

within 60 days of demobilizing. 

Data Requirements 

All environmental data including site characterization and waste characterization, 

mitigation, and disposal that is collected, generated, and used will be documented 

by the START 4 contractor in accordance with the Weston Quality Management 

Plan (QMP) Sections 2.3 and 7.0 (May 2013). The ERRS contractor will not be 

gathering the environmental data. 

Hazardous categorization of wastes? No. 

Activities Under Contract Statement-of-Work: The contractor shall 

accomplish the following tasks as required under the Contract: 

1. Project Planning (SOW II.A.1) 

• Provide a detailed work plan to accomplish the project in the most effective, 

efficient and safe manner based on existing information. This work plan shall, 

at a minimum, define the types and quantities of cleanup personnel, equipment and materials that will be needed, the proposed project schedule by subtask, and the estimated cost. 

• Provide a detailed Health and Safety Plan to protect the workers on site from 

the hazards with the contaminants and physical threats associated with the 

removal actions. 

2. Containment, Countermeasures, Emergency and Removal Response 

(SOW II.A.2) 

NA. 

3. Decontamination, Response Mitigation (SOW II.A.3) 

• Provide for appropriate removal of contamination if appropriate, in 

consultation with the OSC. 

4. Treatment and Transportation and Disposal Operations (SOW II.A.4) 

• Provide for appropriate disposal and transportation of all contaminated debris, if appropriate. Treatment of the water may be required, however will be 

overseen and managed by the START contractor. 

5. Restoration and Soil Stabilization (SOW II.A.5) 

• Provide for appropriate refurbishment of affected areas, as appropriate and 

in consultation with the OSC. 

138 

6. Analytical Services (SOW II.A.6) 

NA. 

7. Demolition Services (SOW II.A.7) 

NA. 

8. Construction and Support Facilities in Support of Removal Actions 

(SOW II.A.8) 

• Provide for office trailer, including support equipment, communications, 

power, as needed. 

9. Marine Operations (SOW II.A.9) 

NA. 

10. Trans-boundary Response (SOW II.A.10) 

NA. 

11. Response Times (SOW II.A.11) 

NA. 

12. Regional Cross-Over (SOW II.A.12) 

NA. 

Deliverables 

Detailed Work Plan 08/22/2014 

Health and Safety Plan NLT the Date of Mobilization 

Construction & Implementation N/A 

Daily Work Orders Daily 

Daily Cost Summary Reports (55s) Daily 

Removal Activities Report NLT 30 days after Demobilization 

Final Daily Cost Summary Report 

(55s) 

NLT 90 days after Demobilization 

Schedule 

The work plan preparation is expected to begin on July 7, 2014, and the current 

estimated schedule is to begin work on site is September 3, 2014. A work plan must 

be submitted to EPA by August 22, 2014. The Task Order expiration is set for 

December 1, 2014. 

Other Task Order Requirements 

1. Provide for application of Service Contract Act Labor rates and David-Bacon 

Labor rates in consultation with the RS ERRS Contracting Officer. 

2. Provide all site cost documentation within 90 days after demobilization date, 

with the exception of ‘pending costs’. Use RCMS Windows Version 2.0 for Site 

cost accounting purposes. 

SUMMARY REPORT 

EPA Internal Review of the August 5, 2015 Gold King Mine Blowout 

8/24/2015 

Purpose: 

The purpose of this report is to provide the EPA Internal Review Team’s (Team) 

assessment of the events and potential factors contributing to the blowout from the 

Gold King Mine (GKM) in Colorado on August 5, 2015. This report provides the 

Team’s observations, conclusions, and recommendations that regions may apply to 

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

projects at similar types of sites across the country. 

139 

Team Charge: 

The Assistant Administrator of the Office of Solid Waste and Emergency Response 

(OSWER) charged a subgroup of the National Mining Team on August 14, 2015 to 

conduct a rapid analysis of the Gold King Mine (GKM) release and provided them 

with the following charge: 

The EPA Gold King Mine Internal Review Team (Team) is charged with conducting 

an internal review of the August 5, 2015, release of approximately 3,000,000 gallons 

of mine wastewater from the Gold King Mine near Silverton, CO. This review will 

entail developing a detailed, chronological description of events as well as identifying 

potential factors contributing to the release. The review may include recommendations that regions may apply to ongoing and planned site assessments, investigations, 

and construction or removal projects. The review will include: 

• A visit, during the week of August 16, 2015, to the Gold King Mine site to 

observe post-August 5 site release conditions. 

• Interviews with the on-site EPA On-Scene Coordinator and other appropriate 

EPA staff, appropriate contractor representative(s) (e.g., Emergency Response 

and Rapid Services [ERRS], Superfund Technical Assessment and Response 

Team [START] contractor), and others, e.g., State, other Federal agency/departmental personnel, as appropriate, to document their recollections of the 

event. Interviews shall not interrupt response. [See Attachment B for a list of 

people interviewed.] 

• Interviews to be conducted using guidelines to be included in a briefing from 

the Office of the General Counsel. 

• Review of pertinent site documentation, (e.g., work plan, schedule, quality 

assurance response form, other pertinent technical/engineering/contractual 

documents/any photographic records) to identify potential factors contributing 

to the release. 

• Potential coordination with the subsequent external review being conducted by 

the U.S. Department of Interior/Bureau of Reclamation and U.S. Army Corps 

of Engineers thereby minimizing the impact to response operations. 

• Any recommendations to implement at similar sites, both ongoing and new, 

based on the results of the Team’s review. 

A senior manager from OSRTI will be identified to facilitate the identification of 

individuals to be interviewed, agencies to engage, etc. The Team will develop a preliminary report addressing the information above and deliver it electronically to the 

OSWER Assistant Administrator by Monday, August 24, 2015. If necessary, the team 

may also indicate if additional gaps need to be filled, and the timeframe it would 

take to fill those gaps. 

Scope of Team Review: 

The Team was asked to conduct a one week rapid assessment of the GKM Blowout. 

From August 15 to August 24, 2015, the Team performed a site visit, interviewed 

key individuals, reviewed available information, and drafted a report. 

EPA’s Internal Review Team consisted of the following individuals: 

John Hillenbrand, CEG, EPA Region 9—Team Leader 

Joshua Wirtschafter, Assistant Regional Counsel, EPA Region 9 

Ed Moreen, P.E. Civil, EPA Region 10 

Lisa Price, Geologist, EPA Region 6 

Shahid Mahmud, Environmental Engineer, EPA Headquarters 

The following are the attachments included in this report: 

Attachment A: List of documents reviewed by the Team 

Attachment B: List of interviewees 

Attachment C: Map of Mine Workings 

Attachment D: Working Assumptions Diagram of conditions at new Gold King 

Mine Level 7 Portal 

Attachment E: Gold King Mine Flow Data and Chart 

Attachment F: Report Photos 

Attachment G: Photo log from 2014 and 2015 Removal Investigation activities 

140 

1The Team could not ascertain in the time allowed if flow rates represent composite for both 

the Old Adit and the Adit or just the Adit. 

In addition, the Team conducted a limited review of internet resources to determine 

if there are existing guidelines or procedures for investigating sites with similar 

characteristics as this site. 

Background Information: 

The following is the chronology of pertinent site events. 

1880s—The Gold King Mine began operation. 

Mid-1900s—The Gold King Mine operations ceased; mining had occurred at seven 

(7) different elevations (levels) through three (3) adits: the Level 7, Number 1, and 

Sampson. Historical mine water levels could not be ascertained by the team during 

the review period. 

Mid-1900s—The American Tunnel was constructed below the lowest mine workings 

in the area (Attachment C: Map of Mine Workings). It runs from the drainage adit 

discharge point in Gladstone, beneath the Gold King Mine and eventually reaches 

the Sunnyside mine complex approximately two (2) miles northeast. During operation of the American Tunnel it effectively drained the Gold King and Red and 

Bonita Mines. It passes 500 feet directly beneath the Gold King Mine Level 7 adits. 

Anecdotal information puts construction in the early to mid-1900s. A treatment 

plant was constructed to treat the water from the tunnel prior to release to Cement 

Creek. The date of construction of both the water treatment plant and the American 

Tunnel could not be ascertained during the review period. 

1986—A permit was issued to the Gold King Mines Corporation (Permit Number 

M–1986–013) by the state of Colorado to re-work the historic interconnected adits. 

During the permitted mine operations, another adit was driven at the Gold King 

Level 7 (the Adit) to bypass a collapse in the original Gold King Level 7 Adit (the 

Old Adit). 

2002—Treatment of the discharge water from the American Tunnel ceased after installation of the last bulkhead. Flow from the American Tunnel continued after the 

installation of the bulkhead at approximately 100 gallons per minute (gpm). Since 

closure of the American Tunnel, the water quality in the Animas River has degraded progressively due to the impact of drainage from the American Tunnel and 

other newly draining adits. 

2005—No documentation of flow for the Adit is available before July 2005. 

Anecdotal information suggests that the Red and Bonita Mine, which did not have 

any previously documented mine water discharge, began releasing approximately 

300 gpm of water after the American Tunnel closure. The Adit also experienced an 

increase after the American Tunnel closure from no significant flow to flow rates 

of approximately 42 gpm in July and 135 gpm in September.1 (See Attachment E: 

Gold King Mine Flow Data and Chart) 

2006—Mine water flow rate from the Adit was approximately 314 gpm 1 in October. 

2007—Release of mine water from the Old Adit breached the existing discharge 

ditch and saturated the mine waste pile. The saturated conditions led to a slope failure that partially blocked access to the site and filled the North Fork of Cement 

Creek with mine waste. The quantity of mine water discharged is not known. 

2008—The Colorado Division of Reclamation, Mining & Safety (DRMS) constructed 

a discharge diversion structure (flume channel) to prevent future mine water 

saturation of the Gold King Level 7 mine waste pile at the Old Adit. This work was 

paid for by the forfeiture of the bond associated with the permit issued in 1986, M– 

1986–013. 

2009—The DRMS’s Gold King Mine Reclamation Plan called for all four (4) adits 

of the Gold King complex to be backfilled and the installation of a flume to divert 

the discharge. The two (2) Gold King Level 7 adits (Adit and Old Adit) were 

partially collapsed already but additional closure work was conducted. This work 

was paid for by the forfeiture of the bond associated with the permit issued in 1986, 

M–1986–013. DRMS stated in the project summary for the activities that ‘‘[a] future 

project at the site may attempt to cooperatively open the Level 7 Old Portal in an 

effort to alleviate the potential for an unstable increase in mine pool head within 

the Gold King workings.’’ The Old Adit was releasing roughly 200 gpm. 

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2010—The average mine water flow rate from the Gold King Level 7 mine was 

206 gpm.1

2011—The average mine water flow rate from the Gold King Level 7 mine was 

140 gpm.1

2014—EPA planned to expose the Adit in 2014—EPA was working with DRMS and 

the Animas River Stakeholder Group (ARSG), which is composed of industry, agency 

and citizens including former miners and equipment operators who have worked on 

some of the mine adit closures in the area of Gold King, to identify actions that may 

be needed to reduce contaminant loading to Cement Creek and downstream waters. 

This included a plan to install bulkheads at the Red and Bonita Mine. It was determined appropriate to attempt to open the Adit prior to restricting flow at the Red 

and Bonita Mine with a bulkhead and potentially changing the water level elevations in the Red and Bonita Mine. To accomplish this objective, EPA planned to 

expose the Adit behind the external blockage, build a portal structure, and convey 

Adit flows into the existing channel (see Attachment D). This was being done to 

allow access for further investigation of the Adit. The flow rate data from the Gold 

King Level 7 mine was approximately 112 gpm in August, 2014, however, on 

September 11, 2014 prior to the beginning of site work, the flow rate was less than 

13 gpm.1

A retention pond was constructed to capture solids that might be released during 

the Adit work. On September 11, work began to remove the material that was blocking the Adit. The excavation extended approximately 20 feet into the Adit entrance. 

The work stopped when it was determined that the elevation of the Adit floor was 

estimated to be six (6) feet below the waste-dump surface elevation. EPA determined that Adit drainage would need to be managed in a larger settling pond(s) 

requiring additional treatment. 

The excavation in 2014 revealed that two (2) 24-inch pipes were in the tunnel blockage adjacent to the top (roof) of the maximum 10 foot tall Adit. (See Diagram in 

Attachment D). The presence of water below the two (2) 24-inch pipes indicated the 

current flow of water was coming out at least four (4) feet below the roof of the Adit, 

indicating approximately six (6) feet of impounded water above the estimated Adit 

floor elevation. 

On September 12, two (2) drain pipes were placed at the base of the blockage to 

capture the ongoing mine water drainage and direct flow into the existing flume 

channel installed in 2008 by DRMS. Geo-fabric, crushed rock, and quick-dry 

concrete was used to secure the pipes in place. The Adit area was backfilled and 

compacted with additional loads of crushed rock to maintain a stable surface at the 

Adit for potential future work. Field work was suspended for the rest of the year. 

2015—Based on information acquired in 2014, EPA, again, planned to reopen the 

Adit and workings to investigate the conditions to assess the ongoing releases of 

mine water. This would require incremental de-watering and removal of internal 

blockages that were preventing the release of impounded water. A secondary purpose of the work is to attempt to gain access to the mine workings and to mitigate 

flows, if possible. 

In January and May, 2015, the ARSG held meetings, open to the public, where 

DRMS and EPA presented their plans for removal investigation at the Adit. The 

Meeting Summaries posted by ARSG do not record any stakeholder criticism of the 

planned approach. 

EPA returned to the Adit in late July, initiating site preparations with reconstruction of the access road and installation of an alternative mine drainage pipe at a 

deeper depth in anticipation that the Adit floor is lower than the other drainage 

pipes installed in 2014. 

On August 4, excavation began above the top of the Adit to remove consolidated 

soils and debris. The goal was to find competent bedrock within which to anchor 

a support structure for the Adit. During this first day of excavation, according to 

the OSC, mine timbers and the external Adit blockage were newly exposed. 

On August 5, excavation resumed. The OSC observed a solid rock surface and constructed a ramp above the external Adit blockage to remove soil from the bedrock 

surface. During the excavation, the lower portion of the bedrock face crumbled away 

and there was a spurt of water from the area in the lower part of the excavation 

area. Shortly after the water spurted, more water started coming from the localized 

area of the spurt. The color of the water was initially clear but then changed to red/ 

orange. The OSC speculated that the excavation might have knocked something 

loose when removing the soils from the rock face. 

142 

The time lapse between the spurting to the flow of red/orange water was 3 to 4 

minutes. It took approximately 1 hour for the peak flow to subside. 

Observations Related to the Release: 

The Team interviewed key personnel involved with the Adit blowout from EPA 

Region 8 on August 17, 2015, to document their recollections of the event and to 

get pertinent site documents and other information on the site. EPA Region 8’s personnel provided a package of key site- related documents, pictures of the site, and 

site diagrams. On August 18, 2015, the lead OSC from Region 8 led a site visit of 

the Gold King Mine. Senior mining experts from the DRMS also participated in this 

site visit. The Team asked the State experts about their understanding of the site 

and recollection of the events at the Adit and the upper Animas River mining 

district. 

The August 18 tour included stops at: the American Tunnel entrance with an explanation of the underground working by DRMS; the road above the series of ponds 

that treat the post-blowout drainage from the Adit (see Appendix F, photo 1); the 

Gold King Mine area; and both the Old Adit and the Adit. No stop was made at 

the Red and Bonita Mine (Appendix F photo 2 and Attachment C, map of workings). 

In addition to bringing an understanding to the chronology of events listed above, 

the site visit and work plan provided the following supplemental information: 

• The work plan accounted for the possibility of pressurized (mine water with a 

head high enough to cause water to exit the Adit at high velocity) mine water 

conditions. In the introduction, the work plan states: 

‘‘Conditions may exist that could result in a blow out of the blockages and 

cause a release of large volumes of contaminated mine waters and sediment 

from inside the mine, which contain concentrated heavy metals.’’ 

• The work plan outlined the steps to be taken such as gradually lowering the debris blockage and the use of equipment (stinger) that would help control drainage 

from the mine under non- or slightly-pressurized conditions. A stinger is a metal 

pipe that is inserted from above the top of the mine adit front at an angle, 

through the debris and collapse blockage into the void behind the blockage, allowing drainage and control of mine water. 

• For the Adit, a determination of no or low mine water pressurization was made 

by experienced professionals from EPA and the DRMS. Based on discussions with 

the EPA and State people associated with the site, this determination was based 

on the following conditions: 

1. The hill above the Adit was inspected for seeps which would have indicated 

outward flow from mine water that had a pressure head above the top of the 

Adit. It was reported that there were no seeps. 

2. The mine was draining, which indicated that since water was able to escape, 

buildup of pressure was less likely. 

3. The DRMS experts, XXXXX who supported the removal investigation, had 

worked in the area for years, were familiar with the site and knew the details 

of the operation and area hydrology. 

4. The Animas River Stakeholders Group (ARSG) had been given a presentation 

by XXXXX, EPA’s On-Scene Coordinator (OSC), and XXXXX with DRMS, as 

documented in the May ASRG Meeting Summary. 

5. The DRMS experts supported the removal investigation at the Adit and were 

present at the site during the operations on August 4 and 5. 

6. The ‘‘seep’’ level coming from the Adit during excavation seemed to be at the 

mid-level of the material blocking the Adit, indicating a partially filled adit 

as opposed to a pressurized one (See Attachment D, bottom of two metal 

pipes). 

7. The Red and Bonita Mine Adit was lower in elevation (a few hundred feet) 

and found to be unpressurized after it was accessed by drilling from above. 

8. The DRMS experts indicated that similar techniques have been employed at 

other similar mine sites. One DRMS expert noted that a similar investigation 

technique was implemented at the Captain Jack Mine in Colorado but did not 

result in a blowout. 

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• Despite the available information suggesting low water pressure behind the debris 

at the Adit entrance, there was, in fact, sufficiently high pressure to cause the 

blowout. Because the pressure of the water in the Adit was higher than anticipated, the precautions that were part of the work plan turned out to be insufficient. The inability to obtain an actual measurement of the mine water pressure 

behind the entrance blockage seems to be a primary issue at this particular site. 

If the pressure information was obtained, other steps could have been considered. 

However, the Team cannot determine whether any such steps would have been 

effective, or could have been implemented prior to a blowout. 

• Mine water pressurization data from behind the blockage potentially could have 

been obtained through a drill hole inserted further back into the Adit from above 

the mine tunnel. Such a technique was performed at the nearby Red and Bonita 

Mine and found no pressurization. Consequently, it was determined that the tunnel was not full of water and excavation of the Adit at that mine could proceed. 

Such a technique was not used at the Adit. Based on the site topography (steepness and ruggedness) observed by the Team and conversations with the OSC and 

the DRMS experts, (See Attachment F, first photo) the use of such a technique 

would have been very difficult and expensive at the Adit. The unstable and steep 

slope above the Adit had loose soils and rock and the underlying bedrock was 

prone to cave-ins, as observed over the nearby Old Adit (See Attachment F, photo 

3). Because of the soil and rock conditions, the access and drilling of a hole into 

the Adit from above would have been quite costly and require much more planning and multiple field seasons to accomplish. Although difficult and therefore expensive and technically challenging, this procedure may have been able to 

discover the pressurized conditions that turned out to cause the blowout. 

• An additional potential clue of potential pressurization was the decrease in flows 

from the Gold King Adits over the years (Attachment E). That decrease could 

have been an indication of impounded water from a blockage. The mine drainage 

flow before 2005 was understood to be zero and increased from 42 gpm in 2005 

to 135 gpm in September 2005 and peaked at 314 gpm in October 2006. This increase is attributed to rising groundwater in the Gold King Mine workings from 

plugging of the back portion of the American tunnel in 1995 and possibly 2002. 

The average flows in 2010 dropped to 206 gpm, further dropped to an average of 

140 in 2011 and finally to about 70 gpm or less in the past year. These conditions 

may indicate some type of internal change to the mine such as additional caveins, or a restriction due to already caved material, perhaps by chemical precipitates, or some other cause. It is also possible that the reduced flows could have 

been attributed to decreased precipitation in the area or increased flows from the 

American Tunnel. 

• The Team was not able to identify any calculations made on the possible volume 

of water that could be held behind the portal plug. This calculation could have 

been useful in determining possible response scenarios for unexpected releases. 

• The Request for Proposals (RFP) that included the work at the Adit project requested a plan for dealing with mine water flow and also states that the blockage 

in the Adit must be removed in a manner to prevent a surge of impounded mine 

water from being released. It called for the water impounded behind the blockage 

to be drawn down in a controlled manner as the blockage is removed. Upon review of the work plan, the contractor provided a description and conceptual drawing for dealing with the water (Attachment D). However, the Team believes that 

Emergency Action Plan (EAP) included with the site plan did not anticipate or 

plan for the volume or pressure encountered and contained only limited emergency procedures in case of a mine blowout. This lack of information about a blowout in the EAP could indicate the low expectation of its occurrence by the 

contractor and reviewers. These procedures and contacts may have been included 

in the Site Health and Safety Plan but this document could not be obtained in 

time for this report. 

Conclusions: 

Based on the review of the available information, including the interviews, 

documents and site visit, the Team is providing the following conclusions: 

1. The EPA site removal investigation team had extensive experience with the 

investigation and closure of mines. The EPA site removal investigation team 

had consulted with and had the field support of the DRMS. The EPA site removal investigation team also performed outreach to the ARSG, to provide an 

opportunity for additional input regarding the planned activities. The EPA 

site removal investigation team and the other entities consulted or who 

144 

provided information about the proposed activities had extensive site knowledge of the mine workings and extensive experience evaluating and working 

on mine sites. None of those participating or informed parties raised any 

significant concerns with the proposed activities. 

2. In preparation for the investigation activities, EPA had collected and analyzed 

flow data, was familiar with site topography, and had inspected the site for 

signs of seeps, including the area above the Adit, prior to implementing the 

execution of the work plan. 

3. It is not evident that the potential volume of water stored within the Adit had 

been estimated. Given the maps and information known about this mine, a 

worst case scenario estimate could have been calculated and used for planning purposes. When adequate information is available, performing such calculations may aid the site management team in instances where water is 

anticipated to be trapped in an adit. The interconnectivity of mine workings 

could be used to estimate potential water volume prior to opening up a 

collapsed adit. 

4. Additional expert opinions may be warranted for sites with collapsed adits, 

complex interconnectivity of mine workings, and highly transmissive bedrock 

groundwater systems. 

5. The work plan contained an EAP which included provisions for mine emergencies including cave-ins. However, based on the documents reviewed by the 

Team, it was lacking emergency protocols in the case of a significant flow or 

blow out. It should be noted that the site team responded appropriately during and after the blowout by moving personnel and equipment and diverting 

mine water discharge. Such provisions are an important component of an 

EAP on sites such as the Gold King Mine. There may have been some contingencies planned in case of a blowout, but it could not be ascertained by the 

Team during the review period. 

6. The Adit is located in a remote, rugged mountain location in the Rocky 

Mountains. The level of effort necessary to mobilize a drill rig and create a 

drill pad to undertake drilling or other investigative techniques to determine 

pressure (hydrostatic head) within the mine would require significant resources and add additional time to the implementation schedule and may not 

be successful in ascertaining water levels or pressure within the mine. Safety 

is a key consideration for drilling at the Gold King site, and establishing a 

safe location for the drill pad would be very challenging given the steepness 

and instability of the slopes above and in proximity to the Adit. Drilling to 

hit a target such as an adit or tunnel can be very challenging if the drill pad 

cannot be located in close proximity the adit entrance. It can also be a lengthy 

process and require considerable effort and expense. However, if it could be 

performed successfully and safely, drilling could provide the information needed to ascertain the pressure behind the collapsed workings within the mine. 

7. In reviewing the pertinent documents provided, interviews conducted, visiting 

the site and evaluating the photo logs, the Team concludes that the Adit 

blowout was likely inevitable. Actions taken by the EPA OSC to pull out the 

site personnel and crew from and near the Adit, just prior to the blowout, 

probably avoided any fatalities from the pressurized Adit blowout. 

8. Although the removal investigation team was quite experienced and followed 

standard procedures of a well thought out work plan that included state and 

ARSG involvement, the underestimation of the water pressure in the Gold 

King Mine workings is believed to be the most significant factor relating to 

the blowout. 

9. A limited review of internet resources did not reveal any existing guidelines 

or procedures for assessing highly pressurized mine adits or tunnels, such as 

Gold King Mine. 

Recommendations: 

1. EPA should develop guidance to outline the steps that should be undertaken 

to minimize the risk of an adit blowout associated with investigation or 

cleanup activities. The guidance, at a minimum, should: 

a. Identify a tiered approach that requires increased detail regarding the 

proposed action based on the complexity of the site conditions or the 

potential nature of any release. 

145 

b. Provide criteria to identify whether a proposed investigation or cleanup 

action presents a low, moderate, or high risk with respect to the potential 

for an adit blowout and significant release of acid mine drainage or mine 

waste. 

c. Require that a management review meeting(s), including the key state 

(and other Federal agencies when appropriate) be held to determine 

whether sufficient information exists to meet the criteria established in 

the guidance or whether additional information is necessary before undertaking the investigation or cleanup activity. 

d. Outline the outreach activities to inform the local community and stakeholders. 

e. Identify the contingency planning that may be appropriate based upon the 

risk of blowout and the nature of the potential release. 

2. Even though the chance of encountering pressurized mine water was investigated in many ways at the Gold King Mine, the Gold King Mine blowout 

suggests that EPA should develop a toolbox of additional investigative tools 

such as remote sensing or drilling into the mine pool from the top or side that 

should be more seriously considered at similar sites. It’s important to recognize that underground mines may be extremely complex, making characterization of the internal hydraulic conditions and flow paths challenging. 

Adding to this complexity is that older mine workings are often not well 

mapped and that some underground mines may also be structurally unstable 

and prone to cave-ins and internal plugging making them very difficult to assess. The toolbox should identify techniques which could be used to minimize 

uncertainties associated with these types of mines. Site specific conditions 

may make certain investigative tools prohibitive or extremely challenging and 

costly. In the end, while additional information gathering may reduce the uncertainty, a complete understanding of the underground conditions may not 

be attainable. 

3. Emergency Action Plans should include protocols should a blowout occur at 

those mine sites where there is a potential for such an event to occur. 

4. Information and rationale developed by a site team in anticipation of an investigation or cleanup action for sites where an adit blowout could be a concern 

(e.g., available pressure information, a reasonable estimate of the volume of 

water within the mine workings, or adit drainage flow rate data) should be 

critically reviewed by a qualified and experienced Regional Mining engineer 

and or Mining Hydrologist/Geologist. The Region may want to consider getting assistance from qualified outside parties such as other Federal agencies, 

state agencies, or outside consultants in conducting this critical review. 

5. The Team also recommends that subsequent reviews of the Gold King Mine 

Adit Blowout by an Independent External Review Group or the Office of 

Inspector General consider the possibility of assembling a panel of experts 

consisting of mining industry experts, other federal and state mining experts, 

academia, consultants, non-governmental organizations and tribal governments to further analyze the situation encountered at this site and come up 

with recommendations on additional safeguard measures to reduce the risk 

and minimize the consequences of such incidents in the future. 

146 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

— Final Site Health and Safety Plan form of Emergency and 

Rapid Response Services at the Gold King Mine prepared for 

the U.S. Environmental Protection Agency Region 8 by 

Environmental Restoration, LLC. Dated September 4, 2013. 

— Letter from the Environmental Protection Agency addressed to 

Chairman Chaffetz and Ranking Member Cummings as followup to an April 30, 2015 hearing entitled ‘‘EPA Mismanagement.’’ 

— PowerPoint slides used in the hearing by Rep. Matt 

Cartwright. 

— Audio recording of conversation between National Response 

Center and Allen Sorenson of the Colorado Division of 

Reclamation regarding notification of the Animas spill. 

— E-mails documenting correspondence between the Natural 

Resources Committee Subcommittee on Oversight and 

Investigations staff and the Department of the Interior’s Office 

of Inspector General and the Fish and Wildlife Service regarding consultation under the Endangered Species Act from the 

Environmental Protection Agency. 

— E-mails presented by Mr. Flynn documenting correspondence 

between the Environmental Protection Agency and the New 

Mexico Environment Department regarding expenditures by 

the Department on the Animas spill. 

— E-mails presented by Mr. Flynn documenting correspondence 

between New Mexico state officials and the EPA regarding 

water sampling and testing. 

— Written Statement from DOI regarding their response to the 

Gold King Mine Release. 

— Salt Lake Tribune—Editorial: Chaffetz, Bishop owe us real 

answers on EPA failure, not another Benghazi. 

Æ