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[Senate Hearing 114-188]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 114-188
 
                   OVERSIGHT OF THE CAUSE, RESPONSE, 
               AND IMPACTS OF EPA'S GOLD KING MINE SPILL

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 16, 2015

                               __________

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             FIRST SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
               
               
               
               
               
               
                                (II)  
               
               
               
               
               
                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 16, 2015
                           OPENING STATEMENTS

Gardner, Hon. Cory, U.S. Senator from the State of Colorado......     1
Bennet, Hon. Michael, U.S. Senator from the State of Colorado....    10
Udall, Hon. Tom, U.S. Senator from the State of New Mexico.......    12
Heinrich, Hon. Martin, U.S. Senator from the State of New Mexico.    13
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    15
Boxer, Hon. Barbara, U.S. Senator from the State of California...    16
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island, prepared statement.....................................    66

                                WITNESS

McCarthy, Hon. Gina, Administrator, U.S. Environmental Protection 
  Agency.........................................................    18
    Prepared statement...........................................    21
    Responses to additional questions from:
        Senator Inhofe...........................................    25
        Senator Fischer..........................................    40
        
        
        
        
        
        
        
                                    (III)
        
        

 OVERSIGHT OF THE CAUSE, RESPONSE, AND IMPACTS OF EPA'S GOLD KING MINE 
                                 SPILL

                              ----------                              

                     WEDNESDAY, SEPTEMBER 16, 2015

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:01 a.m. in 
room 406, Dirksen Senate Building, Hon. James M. Inhofe 
(chairman of the committee) presiding.
    Present: Senators Inhofe, Boxer, Sullivan, Rounds, 
Barrasso, Capito, Crapo, Boozman, Fischer, Markey, and Cardin.
    Senator Inhofe. We will come to order. We have, Senator 
Boxer and I, if it is all right with her, are going to withhold 
until we hear from four Senators who have made a request to be 
here. Senator Gardner first called this to my attention.
    So what we are going to do is start with you, Senator 
Gardner, and go across and hear from those who have a special 
concern and interest. You are recognized.

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

    Senator Gardner. Thank you, Mr. Chairman, Ranking Member 
Boxer, and other members of the Environment and Public Works 
Committee, for holding this hearing today to examine the August 
5th, 2015, spill that took place at the Gold King Mine in 
Southwest Colorado.
    I also appreciate the committee for providing Senators 
Bennet, Heinrich, Udall and me with the opportunity to make 
statements about the impact that this spill has had in our 
States and obviously the representatives here who will also 
testify. Also, remember the spill had an impact on the Southern 
Ute Indian tribe, Ute Mountain Ute and the Navajo Nation.
    From the outset of the spill, it was crucial that the EPA's 
full focus be on mitigation and slowing the flow of 
contaminants in the Animas River. Water testing shows that the 
surface water of the river has returned to pre-incident levels. 
But many uncertainties remain regarding long-term remediation 
and future monitoring for heightened contamination in the river 
during spring runoff. If anybody has seen the pictures of 
recent days when you can go in and disturb and disrupt the 
river bed bottom, the bottom, the sediment, you can see 
material still being kicked up.
    Once the national press disappears from the area, there are 
still serious concerns that exist for Coloradans and 
communities downstream that the EPA must address.
    Although the EPA has acknowledged the magnitude of this 
crisis, its initial lack of communication and coordination in 
events leading up to and following the spill are suitable for 
congressional oversight. Affected communities and stakeholders 
deserve transparency and accountability in the events 
surrounding the spill, particularly in understanding where EPA 
was during the first hours and days following the spill.
    For example, the Colorado Department of Public Health and 
the Environment was the first to notify the city of Durango of 
the Gold King release on August 5th. The Colorado Department of 
Natural Resources was the first to notify the Southern Ute 
Indian Tribe of the release on August 5th. The LaPlata County 
sheriff's office closed public access to the Animas River on 
August 6th.
    The questions that we must ask today: where was the EPA 
during this initial notification and closure of the river? Did 
the agency follow the National Contingency Plan for 
notification and implementation of its response on this 
disaster? Did they follow the same requirements that would have 
been in effect for a private sector actor? Was there anyone 
within the EPA with crisis management experience for a spill of 
this nature dispatched to the area or made aware of the spill? 
These are but a few of the questions I hope Administrator 
McCarthy will address today.
    In the first few days following the spill, it was largely 
State, local and tribal officials responding. It was not until 
August 10th that the EPA established a unified command center 
in Durango. Along with the confusion over EPA's lack of 
notification, frustration began regarding the need for timely 
release of a simple, straightforward interpretation of the 
water quality monitoring data from the EPA.
    From my personal experience, the EPA's response mirrors 
that of local communities. No one from the EPA attempted to 
contact me until days after the spill. Upon first learning of 
the spill, I attempted to speak with the Administrator but was 
told she was unavailable. After pushing back on the EPA and 
requesting answers, I was told the regional director would 
contact me. That call came several hours later.
    I visited the spill site on August 9th with Senator Bennet. 
This is 4 days after the 3 million gallons of contaminated 
water were released, and yet the EPA did not yet have an 
appropriate crisis response plan or team in place. In fact, it 
was that Sunday morning briefing where we were sitting with the 
EPA officials who could not answer basic questions including 
how much water at that point was still leaking into the river.
    From the outset, I have said that the EPA should be held to 
the same standards as EPA would hold a private company for the 
spill, which means investigations must be conducted, people 
must be held accountable and tough questions must be asked. 
When those questions get asked, there must be answers.
    Among the tough questions that must be asked, the few I 
have are: whether the EPA knew that it was likely that water 
was impounded behind the Gold King Mine portal and a blowout 
was possible. Whether the health and safety plan for the Gold 
King Mine work was adequate. Why did it take several days for 
the EPA to revise the amount of contaminated water?
    The agency initially said the amount was, I believe 1 
million gallons and several days later said the search 
consisted of 3 million gallons. What data does the EPA have on 
the total amount of acid mine drainage within the upper Animas 
basin? How long has the agency been tracking the drainage and 
publicly measuring it?
    Mr. Chairman, before concluding, I request the statement of 
Mr. Mike Olguin, Southern Ute Tribal Council member, be 
included as part of my testimony for today's hearing.
    Senator Inhofe. Without objection.
    [The referenced information follows:]
    
    
    
    
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
    
    Senator Gardner. Councilman Olguin will be testifying this 
afternoon in front of the Senate Indian Affairs Committee on 
the Gold King Mine spill.
    Last, I thank you, Mr. Chairman, and your staff, for being 
responsive during this time. While this hearing is to examine 
this incident and the EPA's response, this bill shows a greater 
need for legislation that would allow Good Samaritans the 
opportunity to assist with cleaning up these abandoned mines 
across the West. I hope we can continue to work together on 
this effort, and I know the four of us have done that so far.
    I thank you again for the opportunity to be here, and I 
look forward to hearing the EPA's answers as we continue to 
work together to address this very serious situation.
    [The prepared statement of Senator Gardner follows:]

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

    Thank you, Chairman Inhofe, Ranking Member Boxer, and other 
members of the Environment and Public Works Committee for 
holding this oversight hearing to examine the August 5th, 2015, 
spill that took place at the Gold King Mine in southwest 
Colorado. I also appreciate the committee for providing 
Senators Bennet, Heinrich, Udall and me with the opportunity to 
make statements about the impact this spill has in our States. 
We must also remember this spill had an impact on the Southern 
Ute Indian Tribe, Ute Mountain Ute, and the Navajo Nation.
    From the outset of the spill, it was crucial that the 
Environmental Protection Agency's (EPA's) full focus be on 
mitigation and slowing the flow of contaminants in the Animas 
River. Water testing shows that the surface water of the River 
has returned to pre-incident levels, but many uncertainties 
remain regarding long-term remediation and future monitoring 
for heightened contamination in the River during spring runoff.
    Once the national press disappears from the area, there are 
still serious concerns that exist for Coloradans and 
communities downstream that the EPA must address. Although the 
EPA has acknowledged the magnitude of the crisis, its initial 
lack of communication and coordination in events leading up to 
and following the spill are suitable for congressional 
oversight.
    Affected communities and stakeholders deserve transparency 
and accountability in the events surrounding this spill, 
particularly in understanding where EPA was during the first 
hours following the spill. For example, the Colorado Department 
of Public Health & the Environment was the first to notify the 
city of Durango of the Gold King release on August 5th. The 
Colorado Department of Natural Resources was the first to 
notify the Southern Ute Indian Tribe of the release on August 
5th. The La Plata County Sheriff closed public access to the 
Animas River on August 6th.
    Where was the EPA during this initial notification and 
closure of the River? Did the agency follow the national 
contingency plan for notification and implementation of its 
response on this disaster? Was there anyone within the EPA with 
crisis management experience for a spill of this nature 
dispatched to the area or made aware of the spill? These are 
but a few of the questions I hope Administrator McCarthy will 
address.
    In the first few days following the spill, it was largely 
State, local and tribal officials responding. It was not until 
August 10th that the EPA established a unified command center 
in Durango. Along with the confusion over EPA's lack of 
notification, frustration began regarding the need for a timely 
release of a simple, straightforward interpretation of the 
water quality monitoring data from the EPA.
    My personal experience with EPA's response mirrors that of 
local communities. No one from EPA attempted to contact me 
until days after the spill. Upon first learning of the spill I 
attempted to speak with the Administrator but was told she was 
unavailable. After pushing back on the EPA and requesting 
answers I was told the regional director would contact me. That 
call came several hours later.
    I visited the spill site on August 9th with Senator Bennet. 
This was 4 days after the 3 million gallons of contaminated 
water was released, and yet EPA did not yet have an appropriate 
crisis response plan or team in place.
    From the outset I've said that EPA should be held to the 
same standard as EPA would hold a private company for said 
spill. Which means investigations must be conducted, people 
must be held accountable, and tough questions must be asked. 
Among the tough questions that must be asked, a few I have are:
     Whether the EPA knew that it was likely that water was 
impounded behind the Gold King Mine portal and a blowout was 
possible,
     Whether the Health and Safety Plan for the Gold King Mine 
work was adequate. It appears the plan was wholly inadequate 
because it fails to address safety risks associated with mines, 
and it even lists the site by the wrong name at one point, and
     Why did it take several days for the EPA to revise the 
amount of contaminated water? The agency initially said the 
amount was 1 million gallons, and several days later said the 
surge consisted of 3 million gallons.
    Mr. Chairman, before concluding I request that the 
statement of Mike Olguin, a Southern Ute Indian Tribal Council 
Member, be included as part of my testimony for today's 
hearing. Councilman Olguin will be testifying this afternoon in 
front of the Senate Indian Affairs Committee on the Gold King 
Mine spill.
    Last, I thank you and your staff for being responsive 
during this time, and while this hearing is to examine this 
incident and EPA's response, this spill shows a greater need 
for legislation that would allow Good Samaritans the 
opportunity to assist with cleaning up these abandoned mines 
across the West. I hope we can continue to work together on 
this effort.
    Thank you again for the opportunity to be here, and I look 
forward to hearing the EPA's answers as we continue to work 
together to address this very serious situation.

    Senator Inhofe. Thank you, Senator Gardner.
    Senator Bennet.

           OPENING STATEMENT OF HON. MICHAEL BENNET, 
            U.S. SENATOR FROM THE STATE OF COLORADO

    Senator Bennet. Thank you, Mr. Chairman, and thank you 
also, Ranking Member Boxer, for allowing us all to speak this 
morning. It is a privilege to be here with my colleagues from 
New Mexico and Senator Gardner from Colorado.
    Mr. Chairman, the blowout at the Gold King Mine was a 
disaster that affected many communities in Colorado and New 
Mexico. Although the EPA was trying to remediate the mine, 
there is no denying that they caused this spill, and that is 
entirely unacceptable. It is also clear that the agency was 
slow to communicate, as Senator Gardner said, with local 
governments and did not obtain water quality results or bring 
water to farmers who needed it quickly enough.
    When Senator Gardner and I traveled to Durango 4 days after 
the blowout, the river was still bright orange and closed to 
the public. The Animas River really is the lifeblood of 
Durango. Rafting companies have lost business, farmers could 
not water crops and moms are still keeping their kids out of 
the water. These families deserve to have the full attention 
and dedicated resources of the Administration committed to the 
clean up.
    In the week after the spill, we spoke with Administrator 
McCarthy and wrote to the EPA and the President. We appreciate 
that Administrator McCarthy listened to our call and came to 
Colorado to view the area and address the community. Following 
a crisis like this, it is tempting to point fingers, and we 
must hold people and agencies responsible for any egregious 
mistakes or negligence they committed in the days and hours 
after this spill.
    But as the communities recover, it is also critical to look 
at the bigger picture. Let's identify what went wrong to make 
sure it does not happen again.
    We also need to put this in context: the blowout released 3 
million gallons of acid mine drainage. This same amount of 
polluted water was already being released from the Gold King 
Mine about every week. And the four mines in the area released 
more than 300 million gallons of acid mine drainage into the 
river every year. This has been going on for more than 130 
years.
    In 1902, the water quality was so bad that Durango 
permanently switched to the Florida River for its main drinking 
water supply. That decision largely protected the town's 
drinking water from the most recent disaster.
    There are more than 23,000 abandoned mines in Colorado, Mr. 
Chairman, including 400 in the San Juan Mountains. We need 
solutions to address the acid mine drainage coming from all of 
these old abandoned mines. And in the upper Animas watershed we 
need an immediate solution. That is why we have asked 
Administrator McCarthy and the President to prioritize funding 
for a water treatment plant.
    We also, as my colleague, from Colorado said, need to pass 
Good Samaritan legislation to encourage counties, non-profits 
and companies to clean up abandoned mines throughout the West. 
We worked with Senator Boxer, Senator Mark Udall and the EPA to 
establish guidance for Good Samaritans to allow them to do 
clean up work without being liable under the Clean Water Act.
    Unfortunately, that did not provide enough certainty and 
has not encouraged action. Last Congress, Mark Udall, Scott 
Tipton and I introduced a bill to give Good Samaritans that 
certainty while holding them to appropriate standards. Senator 
Gardner and I are working to reintroduce a bill this Congress. 
Finally, we need to reform the 1872 mining law to make sure 
that companies pay royalties to taxpayers.
    Thank you, again, Mr. Chairman, for allowing me to speak 
briefly, and thank you for holding this hearing.
    [The prepared statement of Senator Bennet follows:]

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

    Thank you, Chairman Inhofe and Senator Boxer, for allowing 
me to speak this morning.
    The blowout at the Gold King Mine was a disaster that 
affected many communities in Colorado and New Mexico. And 
although the EPA was working to clean up the mine, there's no 
denying that they caused the spill. That's entirely 
unacceptable.
    It's also clear that the agency was slow to communicate 
with local governments and didn't obtain water quality results 
or bring water to farmers who needed it quickly enough. When 
Senator Gardner and I traveled to Durango 4 days after the 
blowout, the River was still bright orange and closed to the 
public.
    The Animas River really is the lifeblood of Durango. 
Rafting companies have lost business, farmers couldn't water 
crops, and moms are still keeping their kids out of the river. 
These families deserve to have the full attention and the 
dedicated resources of the Administration committed to the 
clean up.
    In the week after the spill, we spoke with Administrator 
McCarthy and wrote to the EPA and the President. We appreciate 
that Administrator McCarthy listened to our call and came to 
Colorado to view the area and address the community. Following 
a crisis like this, it's tempting to point fingers--and we must 
hold people and agencies responsible for any egregious mistakes 
or negligence they committed in the days and hours after the 
spill. But as the communities recover, it's also critical we 
look at the bigger picture. Let's identify exactly what went 
wrong to make sure this doesn't happen again.
    We also need to put it in context. The blowout released 3 
million gallons of acid mine drainage. This same amount of 
polluted water was already being released from the Gold King 
Mine about every week. And the four mines in the area release 
more than 300 million gallons of acid mine drainage into the 
River every year. This has been going on for more than 130 
years.
    In 1902, the water quality was so bad that Durango 
permanently switched to the Florida River for its main drinking 
water supply. That decision largely protected the town's 
drinking water from the most recent disaster. There are more 
than 23,000 abandoned mines in Colorado, including 400 in the 
San Juan Mountains. We need solutions to address the acid mine 
drainage coming from all of these old abandoned mines.
    And in the Upper Animas watershed, we need an immediate 
solution. That's why we've asked Administrator McCarthy and the 
President to prioritize funding for a water treatment plant.
    We also need to pass Good Samaritan legislation to 
encourage counties, nonprofits, and companies to clean up 
abandoned mines. We worked with Senator Boxer, Senator Mark 
Udall, and the EPA to establish guidance for Good Samaritans to 
allow them to do clean up work without being liable under the 
Clean Water Act. Unfortunately, this didn't provide enough 
certainty and hasn't encouraged action. Last Congress Mark 
Udall, Scott Tipton, and I introduced a bill to give Good 
Samaritans that certainty while still holding them to 
appropriate standards. Senator Gardner and I are working to 
reintroduce a bill this Congress.
    And finally, we need to reform the 1872 Mining Law to make 
sure that companies pay royalties to taxpayers.
    Thank you again for allowing me to speak briefly, and thank 
you for holding this hearing.

    Senator Inhofe. Thank you, Senator Bennet.
    Senator Udall.

             OPENING STATEMENT OF HON. TOM UDALL, 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Udall. Chairman Inhofe and Ranking Member Boxer, 
thank you very much for focusing on this issue. It is a very 
important issue, not only for our States but it is also an 
important issue for the Nation and for the West.
    I first of all would like to, because this impacted in New 
Mexico the Navajo Nation, I would like to recognize the 
President of the Navajo Nation who is here, Russell Begaye. He 
is seated in the row right behind the two Colorado Senators. 
They in particular have been very concerned and on top of this. 
He is going to testify this afternoon in the Indian Affairs 
Committee.
    Sitting back and looking at this and trying to give all of 
you the big picture, as I listened to the two Colorado Senators 
who we are working closely with, here you have big mining 
companies who have been extracting minerals we use in everyday 
life. Many of us believe some of these are very valuable and we 
need them.
    But who says that they are entitled to pollute the sacred 
waters of two Native American Tribes, the Navajo Nation and the 
Ute Tribe? Who says they should be able to pollute drinking 
water that our two States use on a daily basis? And that really 
I think in the big picture sense is why we are here to fix 
this, to make sure that it never happens again.
    That is a big task because this has been going on for a 
long time. This mining and the pollution from it, people have 
been working on it for decades. But we have not, we have not 
been able to solve this problem or really come to grips with 
it.
    In the West, rivers are our lifeblood, our drinking water, 
our irrigation support for agriculture. The Animas River, which 
was the one that was mainly polluted here, and the San Juan. 
Animas means, in Spanish, the River of Souls. The San Juan 
River is another important part of the Navajo tradition. When I 
talked about President Begaye and the Navajos, they have a 
saying, water is life. Our Hispanic community in New Mexico 
says the same thing, agua es la vida.
    So we all know how important water is to the West and to 
all of us. This is a disaster on many levels, to our water, to 
our economy, to our culture. I just very much appreciate 
working with this committee and with these Senators to try to 
get to the root of what we need to do.
    I appreciate very much, as the two Colorado Senators have 
said, EPA taking responsibility for the spill. We all know 
mistakes were made. There were delays in notification, 
confusion across three different EPA regions. There were also 
delays in testing, in providing much-needed water for 
irrigation and other supplies. EPA has accepted responsibility 
here also.
    At the same time, EPA is not the only responsible party. 
What happened at the Gold King Mine is part of a much, much 
bigger problem. Abandoned mines in the West are a ticking time 
bomb, slowly leaking hazardous waste into our streams and 
rivers. The mine owners that left this mess are no longer 
around. EPA is not in the mining business. It is in the clean 
up business.
    Just to show you the wake up call that all of us are 
facing, there are 10 mining projects very similar to this that 
EPA analyzed that said they believe there are similar 
conditions. There are 10 of these mines that have--the work has 
been suspended, so we could see something similar to this 
happen. Three of those are in California, Senator Boxer, four 
in Colorado that the Colorado Senators know very well, two in 
Montana and one in Missouri. So this is a big national issue, 
and it needs to be addressed.
    Let me just finally say that one of the key parts of this 
which we all, I think, have been battling for a long time, is 
the 1872 mining law. That law continues to allow mining 
corporations to take hard rock minerals like gold, silver, 
copper and uranium from public lands without paying any 
royalties, zero royalty. Meanwhile coal, oil and gas companies 
have paid royalties for many decades.
    That is the crux of what we need to do here. Senator 
Heinrich has been working on this issue for a long time. I am 
going to be working very closely with him to make sure we put 
in legislation very soon on that. I very much appreciate, once 
again, your holding this hearing.
    Senator Inhofe. Thank you, Senator Udall.
    Senator Heinrich.

          OPENING STATEMENT OF HON. MARTIN HEINRICH, 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Heinrich. I want to thank you, Chairman Inhofe and 
Ranking Member Boxer, for holding this important hearing today.
    I want to thank all of my colleagues up here, as well as 
the President of the Navajo Nation, who has joined us, for the 
work they have done to shine a light on this and to begin 
dealing with the policy issues that require legislation around 
this. We have had a good team effort from the Colorado and New 
Mexico delegations, including some of our colleagues in the 
House of Representatives as well.
    Last month, a large plume of bright orange mine waste, and 
I will give credit to President Begaye for sharing this photo 
with us, you can see him in the foreground, spilled into Cement 
Creek and then into the Animas River and then into the San Juan 
and polluted the entire Four Corners region. I share the 
enormous anger and frustration over this terrible incident.
    When I toured the affected areas following the spill, I 
visited with impacted residents, including farmers in places 
like Aztec as well as San Juan County leaders in New Mexico and 
Navajo Nation President Russell Begaye.
    In the Southwest, as my colleague said, water is our most 
precious resource. So you can imagine the kind of impact that 
this disaster has had on our communities in Colorado, New 
Mexico, the Navajo Nation, and Arizona.
    Take a look at this photo. I have demanded that the EPA 
react with urgency to protect our health and safety and to 
repair the damage inflicted on this watershed. This must be our 
first and our top priority. An oversight of the EPA's response 
is completely warranted and appropriate.
    But we must also look over the horizon and take action to 
address the hundreds of thousands of other similarly 
contaminated mines that literally litter the West and are 
leaking toxins into our watersheds. There are estimates that 40 
percent of western watersheds have been polluted by toxic 
mining waste and that reclaiming and cleaning up abandoned 
mines across the West could cost upwards of 32 billion to 72 
billion--with a b--dollars.
    I want to share with you a couple of maps. These are our 
two impacted States here, Colorado and New Mexico. As you can 
see from these maps, they show all of the abandoned hard rock 
mines and the waters impacted by hard rock metals. You can see 
that in Southwestern Colorado, for example, where the Gold King 
Mine is, there are literally thousands of unreclaimed hard rock 
mines. You can see them scattered through the mountainous 
portions of Southwestern Colorado.
    If you look at New Mexico, you will see a similar State. If 
you look across the West, the maps would not be dissimilar.
    In 1975 in an even a larger accident than the Gold King 
blowout, a large tailings pile near Silverton spilled 50,000 
tons of tailings laden with toxic-heavy metals into the Animas 
River watershed. In 1979, a breached dam at a uranium mill 
tailings disposal pond near Church Rock, New Mexico, on the 
Navajo Nation sent more than 1,000 tons of solid radioactive 
waste and 93 million gallons of acidic liquid into the Rio 
Puerco.
    For decades before the spill last month, the Gold King Mine 
leached water laced with heavy metals and sulfuric acid into 
Cement Creek. Over the last 10 years, an average of 200 gallons 
of highly polluted water per minute, or more than 100 million 
gallons a year, have flowed out of this mine and into the 
Animas River via Cement Creek.
    Beyond the immediate clean up of this spill, it is high 
time that we overhaul our abandoned mine clean up policies to 
make future disasters like this less likely. While developers 
of resources like oil, natural gas and coal all pay royalties 
to return a fair value to taxpayers for our public resources, 
hard rock mining companies can still mine valuable minerals for 
free.
    A comprehensive approach to mining reform should include 
the establishment of a hard rock reclamation fund, funded by a 
fair royalty on public minerals, Good Samaritan authority to 
allow third parties to clean up mine sites they had no role in 
creating, and comprehensive surveys of abandoned mines and a 
plan to clean them up.
    I appreciate the value of hard rock mining and what it 
means for families. My father and my mother's father both made 
a living in this industry. This industry continues to provide 
good paying jobs throughout the West. But passing long overdue 
reforms to our Federal mining law which has not been updated 
since 1872 is critical if we want to address the root cause of 
this disaster.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Senator Heinrich, and all four 
of you, who have come and expressed your feelings.
    We are all very much concerned about this. You are free to 
leave but are certainly invited to stay if you are able to do 
that.
    At the time of the spill, the EPA's contractor was 
investigating the amount of water that had pooled behind the 
collapsed entrance of the Gold King Mine. EPA authorized this 
investigation as part of a clean up action under the Superfund 
Law to address acid mine drainage from the nearby abandoned Red 
and Bonita mine.
    Based on the committee's oversight to date, it is clear 
that EPA knew that there was likely to be a significant amount 
of water behind the collapsed Gold King Mine entrance and that 
there was a risk of a blowout. Given these facts, it is unclear 
why EPA and the contractor did not exercise more care when 
working at the Gold King site. EPA has said that it has already 
spent $8 million responding to the spill.
    Well, thankfully no one was killed or injured by the 
blowout. But a number of important questions remain unanswered 
about what led to the spill and how EPA responded. Since the 
spill, EPA has conducted a preliminary evaluation of the causes 
and has asked the Department of Interior to conduct an 
independent investigation and report its findings later next 
month.
    But I question whether the Interior Department has the 
independence and the expertise necessary to conduct this 
review. The EPA Office of Inspector General is also conducting 
a review of the spill.
    I would also like to thank Administrator McCarthy for 
agreeing to testify today. It is important that we hear 
directly from the EPA's top official about what caused this 
spill. I think particularly since some of the comments were 
made by some of the Senators who are here today, she may want 
to respond to some of those accusations. I think that would be 
appropriate.
    Finally, I would like to note that the area where the 
blowout occurred is in a historic mining district near 
Silverton, Colorado, where local groups have been working with 
the State of Colorado and the EPA to address the impacts of 
acid mine drainage from this and other abandoned mine sites for 
a number of years.
    When I was chairman of this committee in 2006, we passed a 
bipartisan bill that would have promoted the clean up of these 
sites by Good Samaritans. In the years since, this issue has 
received very little attention from Congress or this committee. 
But as chairman for the second time, I again look forward to 
working with my colleagues from Colorado and New Mexico. I 
think we will this time do what should have been done 10 years 
ago.
    Senator Boxer.
    [The prepared statement of Senator Inhofe follows:]

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

    Today's oversight hearing is on the cause, response, and 
impacts of last month's blowout at the Gold King mine in 
Colorado. The spill, which occurred when an EPA contractor 
poked a hole through the collapsed mine entrance, released more 
than 3 million gallons of contaminated mine water into the 
Cement Creek and Animus River. A yellow plume of contaminated 
water traveled as far as the San Juan River in New Mexico and 
southern Utah and affected drinking water supplies, recreation, 
agriculture, and wildlife along the way.
    At the time of the spill, EPA's contractor was 
investigating the amount of water that had pooled behind the 
collapsed entrance to the Gold King mine. EPA authorized this 
investigation as part of a clean up action under the Superfund 
law to address acid mine drainage from the nearby abandoned Red 
and Bonita mine.
    Based on the committee's oversight to date, it is clear EPA 
knew that there was likely to be a significant amount of water 
behind the collapsed Gold King mine entrance and that there was 
a risk of a blowout. Given these facts, it is unclear why EPA 
and the contractor did not exercise more care when working at 
the Gold King site. EPA has said that it has already spent $8 
million responding to the spill.
    Thankfully, no one was killed or injured by the blowout, 
but a number of important questions remain unanswered about 
what led to the spill and how EPA responded.
    Since the spill, EPA has conducted a preliminary evaluation 
of the causes and has asked the Department of the Interior to 
conduct an independent investigation and report its findings 
later next month. But I question whether the Interior 
Department has the independence and expertise necessary to 
conduct this review. The EPA Office of Inspector General is 
also conducting a review of the spill.
    Before we begin, I would like to welcome Senators Gardner, 
Bennet, Heinrich, and Udall and thank them for requesting this 
important hearing. I look forward to hearing their statements 
on how this spill has affected their States and constituents.
    I would also like to thank Administrator McCarthy for 
agreeing to testify today. It is important that we hear 
directly from EPA's top official about what caused this spill 
and what EPA has learned from this tragedy.
    Finally, I would like to note that the area where the 
blowout occurred is in a historic mining district near 
Silverton, Colorado, where local groups have been working with 
the State of Colorado and EPA to address the impacts of acid 
mine drainage from this and other abandoned mine sites for a 
number of years.
    When I was chairman of this committee in 2006, we passed a 
bipartisan bill that would have promoted the clean up of these 
sites by Good Samaritans. In the years since, this issue has 
received little attention from Congress or this committee, but 
as Chairman for a second time I again look forward to working 
with my colleagues from Colorado and New Mexico as they 
contemplate new legislative proposals.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you. I want to thank my colleagues so 
much for coming here today, and just of course express my 
strong feelings for this issue. I know we have a problem in 
California, potential problem, and you have experienced it 
firsthand.
    First, I would like to note that the mayor of the city of 
Durango, Mayor Dean Brookie, said the following in front of the 
House committee: ``It is tempting in times of crisis to point 
fingers and place blame. Attempts to blame single agencies or 
individuals are pointless and ignore the scale and complexity 
of the problem that needs to be addressed.''
    So I want to point out that the Mayor of Durango said that, 
because I hope this doesn't turn into a finger pointing deal, 
because it doesn't make any sense. It is important for us, as 
was explained by all of our colleagues really to understand the 
root causes of the blowout at the Gold King Mine so that future 
accidents can be prevented. I hope that that is the point of 
this important hearing.
    EPA has already begun the process of improving its mine 
clean up activities. They have conducted already a quick 
internal review. They have issued new guidance based on lessons 
learned so far. But they are not stopping, and there are other 
investigations. There are two ongoing independent 
investigations, one by Department of Interior and one by the 
EPA's Inspector General. I think those reviews are important, 
and I look forward to reading both of them and implementing a 
lot of what they say.
    It is important to understand that acid mine drainage is 
not a new problem, as was stated by our very, I think, 
intelligent colleagues. It has plagued this watershed in 
Colorado for nearly a century. In fact, EPA was at the site at 
Colorado's request to help find solutions to the longstanding 
problem of acid mine contamination. The mines in this area leak 
more than 330 million gallons of acid mine drainage into the 
Animas River each year. Each year. That is 100 times more than 
the spill that we are looking at today. So this is a serious 
ongoing problem.
    Instead of scoring political points by blaming EPA, 
Congress could use this and should use this as an opportunity 
to focus on the longstanding issue of abandoned hard rock mines 
that pollute our rivers and streams. We should ensure that 
polluters pay the cost of clean up so that the American 
taxpayers are not stuck with the bill.
    Some argue that waiving liability for clean ups is needed 
to address abandoned mine pollution. These so-called Good 
Samaritan waivers, unless they are very carefully crafted, are 
not the solution. They need to be carefully crafted. Otherwise, 
what happens is there are no rules, and there can be unintended 
consequences, such as we have seen and cost taxpayers even 
more.
    So some of the solutions that are available to us include 
using existing authority to facilitate clean ups, providing 
sufficient resources to EPA. I think Senator Heinrich pointed 
out to us, this is a big problem, and it is a big price tag. 
But we need to address this with serious resources and that 
will require oversight of clean ups and work to pass reforms 
that ensure polluters pay, not the taxpayers. These steps are 
necessary because these mines pose a serious threat to 
waterways that people use for recreation. It has been laid out 
by our colleagues.
    Mine wastes frequently contain high levels of dangerous 
heavy metals including mercury, lead, arsenic, cyanide and 
other hazardous chemicals that are also used in mine 
operations. In California, we have 47,000 abandoned mines. 
Nationwide, there are over 500,000 abandoned hard rock mines. 
And again, clean up costs are in the range of $50 billion. Yet 
the Federal Government is barely making a dent. So I can 
pontificate, colleagues on both sides can pontificate about how 
bad this is. But unless we spend some dough on this we are 
going to face more of these terrible disasters.
    EPA spends an average of $220 million per year, the Bureau 
of Land Management and Forest Service $5 million to $20 million 
respectively, although Congress has appropriated even less in 
recent years. In President Obama's budget his Administration 
proposed reinstituting the Superfund tax so that polluters pay 
for clean up. They have also proposed creating a fee on hard 
rock mining that would be paid into a fund for clean ups.
    Unfortunately we failed to act, Congress has failed to act. 
Yes, we are holding this hearing, I am for it, I thank my 
chairman, and I think it is totally and completely appropriate.
    I would ask that the rest of my statement be included in 
the record. Let's really step up to the plate. Let's not just 
point fingers. Let's get something done and stop these 
disasters from happening in the future.
    Thank you Mr. Chairman.
    [The prepared statement of Senator Boxer was not received 
at time of print.]
    Senator Inhofe. Without objection that will happen. Thank 
you.
    Thank you very much, Senators. We will now welcome to the 
table the Administrator. While she is coming in, let me share 
on the basis of the arrivals. On the Republican side it will be 
Rounds, Sullivan, Barrasso, Capito and Crapo. On the Democrat 
side, Boxer, Merkley, and Carper, and Markey, too.
    Senator Boxer. It should be Boxer, Cardin and Markey, is my 
understanding. Boxer, Cardin and Markey.
    Senator Inhofe. OK. Good.
    Administrator McCarthy, why don't you give us your opening 
statement. You have heard a lot of comments being made by 
others, and we want to give you a chance to respond.

        STATEMENT OF HON. GINA McCARTHY, ADMINISTRATOR, 
              U.S. ENVIRONMENTAL PROTECTION AGENCY

    Ms. McCarthy. Thank you. Good morning, Mr. Chairman Inhofe, 
Ranking Member Boxer and members of the committee. I am Gina 
McCarthy, I am the Administrator of the United States 
Environmental Protection Agency. Again, I thank you for the 
opportunity to appear today and to discuss the August 5th Gold 
King Mine release and EPA's subsequent response.
    This was a tragic and an unfortunate incident, and EPA has 
taken responsibility to ensure that we clean it up 
appropriately. EPA's core mission is to ensure a clean 
environment and to protect public health, and we are dedicated 
to continuing to do so. Our job is to protect the environment, 
and we will hold ourselves and continue to hold ourselves to 
the same high standards that we demand of others.
    EPA was at the Gold King Mine on August 5th conducting an 
investigation to assess mine conditions and ongoing water 
discharges so that we could dewater the mine pool and assess 
the feasibility of further mine remediation.
    While excavating above the mine opening, the lower portion 
of the bedrock crumbled, and approximately 3 million gallons of 
pressurized water discharged from the mine into Cement Creek, 
which is a tributary of the Animas River. EPA and Colorado 
officials informed downstream jurisdictions in Colorado within 
hours of the release, before the plume reached drinking water 
intakes and irrigation diversions. Notification to other 
downstream jurisdictions continued the following day, allowing 
for all of those intakes and diversions to be closed prior to 
the plume's arrival.
    In the aftermath of the release we initiated an internal 
review of the incident, and we released an internal review 
summary report, which includes an assessment of the events and 
potential factors that contributed to the Gold King Mine 
incident. The report provides observations, conclusions as well 
as recommendations that our regions should consider applying 
when conducting ongoing and planned site assessments, 
investigations, constructions and removal projects at similar 
types of sites across the country.
    EPA will implement all of the recommendations from the 
report and has shared its findings with external reviewers. As 
you know, in addition to the internal review, the Department of 
the Interior is leading an independent assessment of the facts 
that lead to the Gold King Mine incident. The goal of DOI's 
independent review is to provide EPA with an analysis of the 
incident that took place at the Gold King Mine, including the 
contributing causes. Both internal and external reviews will 
help inform EPA for ongoing and planned site assessments, 
investigations, constructions and removals.
    One of our foremost priorities is to keep the public 
informed about the impacts from the Gold King Mine release and 
our response activities. EPA has closely coordinated with our 
Federal partners and with officials with Colorado, New Mexico, 
Utah, the Southern Ute and Ute Mountain Ute Tribes and the 
Navajo Nation to keep them apprised of water and sediment 
sampling results which are routinely posted on our Web site. 
These results indicate that water and sediment have returned to 
pre-event conditions and supported local and State 
decisionmakers as they made the decision to lift water 
restrictions along the Animas and the San Juan River.
    Finally, I want to clarify that EPA was working with the 
State of Colorado to take action at the Gold King Mine to 
address both the potential for a catastrophic release and the 
ongoing adverse water quality impacts caused by the significant 
mine discharges in the upper Animas watershed. Based upon 2009 
to 2014 flow data, approximately 330 million gallons of 
contaminated water was being discharged from those mines in the 
watershed each year to Cement Creek and the Animas River. That 
is 100 times more than the estimated release from the Gold King 
Mine on August 5th.
    EPA was and continues to work with the State of Colorado as 
well as the Animas River stakeholder group to address these 
significant discharges from mines in the upper Animas watershed 
that are impacting these waters.
    I think that it is important to note that all across the 
country our Superfund program has successfully cleaned up more 
than 1,150 hazardous waste sites and successfully responded to 
or provided oversight for thousands of removal actions to 
protect human health and the environment. That reflects our 
longstanding commitment to protect human health and the 
environment.
    All of the affected residents of Colorado and New Mexico 
and the tribes can be assured that EPA has and we will continue 
to take responsibility to ensure that the Gold King Mine 
release is cleaned up.
    Thank you, Mr. Chairman. That concludes my statement, and I 
am happy to answer any questions that you or the committee may 
have.
    [The prepared statement of Ms. McCarthy follows:]
    
    
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    Senator Inhofe. Thank you, Madam Administrator.
    Let me just go ahead and try to stake out where I think 
your position is, and what your position is, so that others can 
address that position.
    Both the EPA and the contractor knew that there was a risk 
of a blowout at the Gold King Mine. In hindsight, do you agree 
that the EPA should have spent the time and money to do the 
necessary engineering and water pressure tests before work 
began there? Yes or no, we do not need a long answer.
    Ms. McCarthy. Sir, my position is that the State of 
Colorado and the Animas River stakeholder group knew it, it was 
in the work plan. We were actually there, sir, because of the 
danger of a blowout.
    Senator Inhofe. So your answer is no. Did EPA designate the 
clean up here as time critical to cut corners and avoid having 
to do a detailed engineering study?
    Ms. McCarthy. No, sir, we did not.
    Senator Inhofe. Why didn't the EPA ask the Inspector 
General or another Federal agency or group like the National 
Academies that does not have a conflict of interest? There has 
been a lot of concern about a conflict of interest that would 
have been there with the DOI. So I am asking the question, why 
didn't you address one of them as opposed to the DOI?
    Ms. McCarthy. Sir, it is important for us to remember that 
we have also put on hold other similar mining responses, that 
many of which are time critical. We went to DOI because they 
had the expertise, they are bringing the Army Corps in, we 
believe that they are independent, they will give us an 
independent assessment, and that is the most appropriate thing 
to do. And as you know the OIG is investigating this incident 
as well.
    Senator Inhofe. Do you are saying then that those who are 
saying DOI would have a conflict of interest are not accurate?
    Ms. McCarthy. I do not believe they have a conflict of 
interest. They are independent. They should do a good job.
    Senator Inhofe. Have the recent problems with the EPA 
Office of Emergency Management contributed to the Gold King 
Mine spill or affected EPA's response?
    Ms. McCarthy. I am not aware of recent problems with our 
Office of Environmental Management.
    Senator Inhofe. Then last, Senator Bennet made the 
statement that there is no denying that the EPA caused this 
disaster. Senator Gardner in his statement complained that you 
were not available for some period of time, your schedule did 
not permit, to discuss this with Senator Gardner. Is that 
incorrect?
    Ms. McCarthy. Well, sir, we have taken full responsibility 
without question.
    Senator Inhofe. I understand that.
    Ms. McCarthy. I was there on the 12th and 13th. The 
original response was quite hectic and ongoing. I certainly did 
not want my presence there to confuse the situation. But I am 
not aware that the Senator reached out to me in any way prior 
to that, that I did not respond to right away.
    Senator Inhofe. Did you hear his statement that he made?
    Ms. McCarthy. I did not hear his statement, sir, no.
    Senator Inhofe. You might look at that.
    Now, on another topic, because I have just a short while 
here, and it is very important. While you are here the 
Department of Justice recently told a Federal court that EPA 
would submit the final carbon rules to the Federal Register by 
September 4th and that publication would occur by late October. 
Did the EPA submit the rules to the Federal Register by 
September 4th?
    Ms. McCarthy. I am sorry, sir, I don't have those numbers 
in my head. I did not expect this question.
    Senator Inhofe. I know that, but this is significant, 
though, and we need to know. That was the deadline given and 
whether or not you complied with that deadline.
    Ms. McCarthy. I do not have the exact date.
    Senator Inhofe. Do you have staff here that can tell you 
that?
    Ms. McCarthy: I am sorry?
    Senator Inhofe. Do you have staff sitting here who might be 
able to answer that question?
    Ms. McCarthy. We can certainly get you the answer as 
quickly as possible. I do not have my Office of Air and 
Radiation staff here, given the subject matter of the hearing.
    Senator Inhofe. Are you aware that delaying publication 
until the end of October interferes with the ability of 
Congress and the public to legally challenge the rules before 
the big show in Paris?
    Ms. McCarthy. Sir, I am aware that both you and I want this 
to get into the Federal Register as soon as possible.
    Senator Inhofe. Senator Boxer.
    Senator Boxer. Thank you, Senator, thank you, Mr. Chairman.
    Administrator McCarthy, I want to point out that Senator 
Bennet did praise you for being available, so there is 
confusion. One said you weren't, the other one said you were. 
So I think--anyway I am moving on.
    Ms. McCarthy. I certainly had a conversation with Senator 
Gardner. I am unaware of being available.
    Senator Boxer. Good. We will clear it up.
    Administrator McCarthy, the Superfund law called for EPA to 
issue rules requiring certain industries to provide financial 
assurances for clean ups so that taxpayers are not on the hook. 
In 2009, EPA identified the hard rock mining industry as the 
first class of facilities requiring financial assurance rules. 
In other words, that they would be there, should their action 
cause a problem. EPA is undertaking this rulemaking, but now 
you are under court order to finish that rule by December 2017.
    Can you describe the steps EPA is taking to ensure that 
these critical rules are promulgated according to the court's 
schedule?
    Ms. McCarthy. We have also committed, Senator, to an August 
2016 draft. Prior to that draft, we intend to work with our 
sister Federal agencies so that we can be assured that the 
financial responsibility rule will be as accurate as it can be 
in terms of how much responsibility those parties should take 
for CERCLA clean up and how best to assure that that financial 
responsibility will be solid and appropriate.
    Senator Boxer. Administrator, how will these rules help 
assure taxpayers they are not on the hook for future clean ups?
    Ms. McCarthy. My understanding, Senator, is that we do have 
an ability to require financial responsibility for our existing 
and new active sites. The challenge for us are these legacy 
sites talking about like Gold King Mine, where we do not have a 
responsible party that we can lean to, that we will not be able 
to address those issues with this particular rulemaking.
    Senator Boxer. Administrator McCarthy, in response to the 
Gold King Mine spill, you issued a stop work order at all hard 
rock mine sites. You requested a review of whether those sites 
pose a potential for a blowout similar to what happened at the 
Gold King Mine. I want to thank you for that, because clearly, 
we do not want to play Russian roulette with these mines.
    I understand that the review has resulted in the suspension 
of clean ups at 10 sites, including three in California and 
four in Colorado. Again, I appreciate your quick action to 
identify other sites that could present a concern. Can you 
describe what actions EPA is taking to assess the potential 
risk at these sites?
    Ms. McCarthy. I can, Senator. You are absolutely right, we 
were very concerned that any similar situation learn from the 
independent review that is being done by DOI before they 
proceeded. So we have identified as best we can all of the 
sites that EPA is engaged in, which is a small fraction of the 
sites you want to look at. But it is over a couple of hundred.
    We are looking at the similarities between this and the 
Gold King Mine incident, and we are allowing sites to proceed 
where there is an imminent hazard. But if there is not, we are 
waiting for the review to be done so that we can make sure that 
similar sites learn the lessons that we are going to learn on 
the basis of what happened at the Gold King Mine and what the 
investigation by DOI and other independent entities indicate.
    Senator Boxer. Thank you. I think that is very common-sense 
and wise.
    Administrator McCarthy, one concern raised about clean ups 
of abandoned mines by Good Samaritans is who will be 
responsible if something goes wrong during the clean up. This 
is my concern. I love the fact that people can come forward and 
clean up, but who pays if things go wrong? And something could 
easily go wrong.
    So if Good Samaritans are not responsible, who would be on 
the hook for those costs? Would it not be taxpayers in those 
situations?
    Ms. McCarthy. Yes, it would be.
    Senator Boxer. OK, that is why I think it is critical that 
we can work together to come up with some rules that make some 
sense, so we can include Good Samaritans but not have a 
situation where they just go in there.
    Look, if EPA made this kind of mistake, and I know it 
weighs heavy on your heart, that EPA is in there and look what 
happened, now a Good Samaritan comes forward without any of the 
expertise, it could happen again. So we have to be very, very 
careful about it.
    I just want to say, the Obama administration has proposed 
reinstating the Superfund tax and establishing a fee on hard 
rock mining. I just think it makes all the sense in the world 
to get ahead of this. Everything costs something. You can't 
just wish it away and wish that it would be cleaned up.
    So I hope as a result of this hearing and your openness to 
reform that we can make some good reforms within EPA, but also 
that we can have a new era where we can work across party lines 
to truly clean up these sites. Thank you.
    Senator Inhofe. Thank you, Senator Boxer.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Administrator McCarthy, I would like to follow up a little 
bit on what the chairman had started visiting with you about. 
On August 18th the EPA announced that the Department of the 
Interior would conduct an independent investigation into the 
causes of the spill and issue a report by late October. 
Subsequently, DOI announced that the Bureau of Reclamation 
would lead the review.
    However, it appears that there are several conflicts of 
interest that you have spoken about and that you don't believe 
were involved. You are disagreeing with there being conflicts. 
What I am curious about is, if this is an independent review 
and we are assuming that is the way you set it up to be, most 
certainly there would have been a contract or documentation as 
to what the expectations were from DOI.
    Is there a memorandum of agreement or other documentation 
concerning what the DOI would review? And if there is, why 
haven't we received copies as requested by this committee? EPW 
staff has requested the documents, including the charge 
questions or the scope of the DOI's work. But we have not 
received any of the information, this is as of last evening.
    Why has your agency not publicly released the documents? 
Will you commit to sending these documents to us following the 
conclusion of this hearing?
    Ms. McCarthy. Senator, we were as, I think, sensitive as 
you were to making sure that this review was truly independent. 
One of the decisions we made to ensure that was for EPA not to 
actually ourselves control the scope of the investigation. We 
thought it was important for the independence of DOI that they 
actually articulated that scope themselves so that EPA wouldn't 
be accused of narrowing that inappropriately.
    So we are leaving that up to DOI. I am happy to follow up 
to see if I can be helpful in getting any information on how 
they have defined that. But as far as I know, EPA has not seen 
that documentation either.
    Senator Rounds. I am sorry, but you said that you have an 
independent, you are anticipating an independent review, but 
you don't know if the EPA has seen the document which lays out 
the scope of the investigation by an independent firm?
    Ms. McCarthy. EPA did not dictate the scope of that 
investigation.
    Senator Rounds. But certainly you would have seen a copy of 
what would be expected of the independent agency?
    Ms. McCarthy. The independent agency is going to dictate 
that themselves, and we are going to actually live with 
whatever scope DOI is appropriate as an independent 
investigator.
    Senator Rounds. But by now that document should exist, 
shouldn't it? The reason why I am asking is because you have 
indicated that you have already stopped work at other 
locations.
    Ms. McCarthy. I have.
    Senator Rounds. Based upon the preliminary report. But it 
must be based upon some sort of understanding of the review in 
the first place.
    Ms. McCarthy. My understanding is that DOI indicated that 
they would do the review, they understood that they were going 
to be establishing the scope, and it is my understanding that 
they are intending to complete this review in October.
    Senator Rounds. So either the documents exist and your 
agency has not seen them, or second of all, the documents are 
still being developed. At which time my question would be, 
because if not, we should be able to see a copy of them, and it 
shouldn't be very tough to get them.
    Ms. McCarthy. Well, sir, I am continuing to try to make 
sure that EPA is not perceived as interfering in this 
investigation in any way that would question the independence 
of DOI's review. And that is what we are going to continue to 
do.
    Senator Rounds. If it is an independent review, though, it 
seems to me that the independent review agency would have at 
least provided you with a copy of what they are going to be 
reviewing and how they would do it.
    Ms. McCarthy. In this case, I do not believe that we have 
seen that type of documentation.
    Senator Rounds. You have not?
    Ms. McCarthy. Yes, we have seen the press release, that is 
what we have seen. And I know that their review is going to be 
looking at the incident itself and the contributing factors. 
Beyond that I haven't seen a limitation on how they are going 
to conduct that.
    Senator Rounds. Has there been a preliminary report issued 
to your agency from the independent DOI?
    Ms. McCarthy. No, sir, the only communication we have had 
was to look at the press release that was issued. We are hands-
off on this to address the very issue that you are concerned 
about, which is our independence.
    Senator Rounds. But the reason why I am asking the question 
is, just a moment ago you indicated that you have already shut 
down work, I believe you have shut down work at other locations 
based upon the information already received and learned.
    Ms. McCarthy. A number of locations. Yes.
    Senator Rounds. Did that not come from DOI?
    Ms. McCarthy. Oh, no, no, that was our look from our own 
national mining subgroup or team, I guess, our National Mining 
Team, and EPA has done review of all of the NPL, the mines that 
are on our NPL list, and have taken a look at what might be 
even closely similar to this effort. They are consistently 
looking at those to see what should continue or not. But if 
there is any similarity or chance that we need to learn lessons 
here, those reviews and assessments and work is on hold pending 
the result of this investigation.
    Senator Rounds. Would that report which created the need to 
suspend the existing operations, would that be available for 
this committee to review at this time?
    Ms. McCarthy. That is available, sir, and that was just a 
memo that I sent, it was a directive to the agency which I 
thought was appropriate to do, to be very cautious that there 
was no way in which the Gold Mine release would happen again at 
another site. Because we were--I was unclear, and I will remain 
unclear until the independent review is done about what was the 
real contributing factor, what happened that we need to make 
sure will never happen again.
    Senator Rounds. Thank you for your testimony.
    Ms. McCarthy. Thank you, sir.
    Senator Inhofe. Thank you, Senator Rounds.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Administrator McCarthy, one thing I would hope all of would 
agree upon is that we do want the independent review, and we 
want it done with the integrity of an independent review.
    Ms. McCarthy. Yes, sir.
    Senator Cardin. To understand what happened, as you said, 
to prevent this from happening in the future. So I think we all 
support that, and we appreciate your commitment to that 
independent review.
    I just want to ask a broader question, because I was 
listening to my colleagues' testimony. Hard rock mining, of 
course, took place in many parts of our country. But clearly 
the States that were directly impacted the most are the ones we 
heard from today, and there are thousands of abandoned mines. 
All look like they create some environmental challenges, some 
have been under control and have been pretty well understood. 
Others are much more problematic, and we are still evaluating 
the risk factors as to whether action is needed. And that was 
part of the process of this particular episode.
    I was impressed by Senator Heinrich's comment that we have 
not reviewed the laws for a long period of time. I understand 
the political environment we are operating under, where it is 
difficult to pass new environmental laws or to pass funding 
laws.
    But I would hope that we would get your evaluation as to 
whether the current laws, either the Clean Water Act or the BLM 
rules for inactive mines, are adequate. Do we really hold the 
right person accountable for the reclamation? Do we need to 
have a dedicated funding source to deal with these types of 
urgent needs in order to protect the environment and water for 
the communities involved?
    It seems to me that considering the challenge, if Senator 
Heinrich is correct, we are talking multi-tens of billions of 
dollars in outstanding needs, we need to at least understand 
this and have more transparent awareness that there are ongoing 
problems every day and yet, are we taking appropriate actions 
to make sure our communities are safe as they need to be? How 
do we go about doing that?
    Ms. McCarthy. Well, Senator, just to put this problem in 
perspective, we are talking about 23,000 abandoned mines in 
Colorado alone and more than 161,000 in the West and Alaska. So 
clearly this is a very large challenge.
    I think I would point to the fact that the Administration, 
in its fiscal year 2016 budget, actually proposed a fee that 
would be charged on hard rock mining to actually support a fund 
that would allow us to do a better job at tackling these 
abandoned mines and the continual impact that they are having 
on water quality.
    I think it is important to remember that many Federal 
agencies have jobs to do in this. But there is no leadership 
position that actually is the one that is accountable for the 
entire issue, and it makes it very difficult. From EPA's 
perspective, we really track the mines, which are only--a small 
percentage of what is out there on the abandoned mines actually 
make it into the NPL list, which is our responsibility to track 
and monitor and to take action if there is an imminent hazard 
or short term action.
    But in this case, it was a mine that is not on that list, 
that the local community did not want on that list. But the 
State was unable on their own wherewithal to address this 
challenge. We have been working for 17 to 20 years to try and 
figure out how to address the 400 mines in the upper Animas 
River. It is an incredible challenge.
    But when EPA responded when the State wanted us to look at 
this issue, the pressurization behind the Gold King Mine, which 
had been going on unattenuated for quite some time, and we went 
with them on the site, we developed a work plan with them, that 
work plan went to public meetings, to the stakeholder group in 
the Animas River, it was completely open, completely 
transparent. Everybody agreed our next steps, and those are the 
next steps we took.
    Senator Cardin. I thank you for that. I just ask that you 
keep us--advise as to whether you have adequate tools, where we 
talked about your budget with a dedicated funding source, 
whether the laws are strong enough. Because the bottom line is 
we want to protect the communities, and we want to hold those 
that are responsible accountable for the reclamation. It seems 
to me that the tools could be stronger from what you testified.
    Ms. McCarthy. Yes, sir, thank you.
    Senator Inhofe. Thank you, Senator Cardin.
    Senator Sullivan.
    Senator Sullivan. Administrator McCarthy, good morning. I 
want to echo kind of what our panel mentioned at the outset 
Senator Udall talked about water is life out West, I think that 
is something we all agree with, certainly we want clean water. 
I agree with Senator Boxer that we all want to make sure that 
polluters are accountable to help make sure we keep our water 
clean.
    But I also want to emphasize what Senator Gardner talked 
about, where we also believe that the Government should be held 
to the same standards as it requires of the public and the 
private sector. Do you believe that?
    Ms. McCarthy. Absolutely. Actually a higher standard would 
be quite appropriate.
    Senator Sullivan. Do you believe that agencies like the EPA 
should be subject to the same transparency in reporting 
requirements that the public is?
    Ms. McCarthy. I believe that is the reason why the NPL 
sites are on the NPL list.
    Senator Sullivan. What do you think would happen to a 
private company if they did what the EPA had done in this 
episode with the Animas River, accidentally causing a blowout, 
very significant pollution, some arguments saying it took too 
long to notify? What do you think would happen to a private 
sector company that that happened to?
    Ms. McCarthy. In my estimation, and again, the facts will 
be borne out or not by the independent review, but the way in 
which you do an action like this, which is difficult to do, is 
you first make sure that if there is an accident----
    Senator Rounds. Let's assume that----
    Ms. McCarthy. I am trying to explain. My answer is----
    Senator Sullivan. I don't have a lot of time. What would 
you think would happen if you guys hired a contractor that 
accidentally caused the eruption, what do you think would 
happen to a private sector company?
    Ms. McCarthy. Exactly the same thing that EPA did if they 
take the same steps that EPA did.
    Senator Sullivan. What kind of penalties would happen to--
--
    Ms. McCarthy. There would be no penalties unless it was 
against a settlement or an order.
    Senator Sullivan. Mr. Chairman, I would like to submit for 
the record a Wall Street Journal article from September 9th, 
2015, that lays out several examples of even smaller than this 
private sector companies where there was an accident, there was 
pollution, and there were officials that were criminally 
charged, some went to jail.
    Senator Inhofe. Without objection.
    [The referenced article follows:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
    
    Senator Sullivan. If you think that the EPA should be held 
to the same standards as private sector companies or a higher 
standard, do you think anyone from the EPA should be held 
criminally liable or go to jail for what happened?
    Ms. McCarthy. I have not received the independent review 
that is going to fully tell me what happened at that site using 
an independent voice and eye. I am looking forward to that. 
But, Senator, the sequence of events when you have a spill is 
to keep your people safe at the site. It is then to stop the 
spill as quickly as possible, and it is then to ensure the 
clean up. That is exactly what EPA is----
    Senator Sullivan. All I am saying, Administrator, is your 
agency has, on a number of occasions, according to this 
article, criminally charged people for accidental spills, and 
some have gone to jail on spills smaller than what you just 
described. So if you are going to hold your agency to a higher 
standard than the private sector, you need to be aware of what 
you have done as an agency in the past.
    And I do want to mention, this is a frustration, I think it 
is a frustration throughout the country, I think it is a 
frustration of why people have focused on this. We have, like 
the other States, abandoned mines in Alaska. We also have 
abandoned legacy wells. I know it is not EPA's responsibility, 
but on BLM land, we have wells that are still leaking oil right 
now. Right now. If you were a private sector CEO in charge of a 
company like that, you would be in jail. Right now BLM allows 
abandoned wells to leak all over the State of Alaska, they 
don't clean these up.
    Let me talk more broadly. I am assuming you also believe 
the EPA should be following the law like the private sector and 
U.S. citizens have to do, correct?
    Ms. McCarthy. Of course, sir. Yes.
    Senator Sullivan. So are you familiar with the Michigan v. 
EPA case, Supreme Court case from the last session that the 
Supreme Court had, Utility Air Regulators v. EPA, and just a 
recent case, North Dakota, Alaska sued the EPA? Are you 
familiar with those cases? Just came out as a preliminary 
injunction.
    Ms. McCarthy. Are you talking about the Clean Water Rule, 
sir?
    Senator Sullivan. These are just three instances in the 
last year and a half, two Supreme Court cases where the EPA has 
either violated the Constitution, the Clean Water Act or the 
Clean Air Act.
    Ms. McCarthy. Sir, I wouldn't characterize it that way, but 
I understand the point that you are trying to make.
    Senator Sullivan. That is exactly the way to characterize 
it; read the opinions. What would happen to a private sector 
company if it was continually violating the law the way the EPA 
does?
    Ms. McCarthy. I don't believe we are violating the law, 
sir.
    Senator Sullivan. Have you read the Michigan v. EPA case?
    Ms. McCarthy. I am familiar with that.
    Senator Sullivan. Have you read the Utility Air Regulators 
v. EPA?
    Ms. McCarthy. I understand that there is a preliminary 
injunction.
    Senator Sullivan. No, these are two U.S. Supreme Court 
cases that said the EPA violated the Clean Water Act and the 
Clean Air Act. The North Dakota Federal Court just recently 
said, the Waters of the U.S. Rule, which we have debated here, 
a lot of us think it violates the law, we had a Federal Court 
saying that it is very likely that it did violate the law.
    Do you think a private sector company could serially 
violate the law and not pay consequences?
    Ms. McCarthy. So this is the way the process works when you 
do rules. EPA interprets the law as best it can, it develops 
the rules. The vast majority of them do go to court and the 
vast majority, EPA wins. The times we don't we listen to that 
court decision and we take appropriate action. That does not 
mean we have violated the law or the Constitution.
    Senator Sullivan. I think you need to reread these cases, 
because that is exactly what the Supreme Court said.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you Senator, Sullivan.
    Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much, and 
thank you, Administrator McCarthy, for being here today.
    So we have a big mess on our hands. We are dealing here 
with a law that was passed in 1872. Ulysses S. Grant was the 
President of the United States, and it hasn't been amended 
since then. And he did a great job, by the way, on winning the 
Civil War, just a great job. I just want to compliment him on 
that.
    This law may have been appropriate for 1872. We were trying 
to get people to go out West. Colorado isn't even a State yet 
for 4 more years. We have to get people out there, we are 
trying to get people to populate these States.
    In 1872 the law passes, in 1876, Colorado becomes a State. 
So the law says, you get out there, kind of like the Homestead 
Act, we will give you access to these mines for free.
    Now it is 2015, some people say there are 160,000 abandoned 
mines, some other groups say there are 500,000 abandoned mines. 
What is the revenue stream to put in place in order to ensure 
that we don't see more accidents like this happening? We don't 
have a revenue stream.
    What we did in the end of the 1970s, beginning of the 
1980s, we created a Superfund Program, a program that was 
intended to deal with the worst sites across the country, Love 
Canal in New York State, Woburn, which was the subject of the 
movie A Civil Action, in Massachusetts, in my congressional 
district. And we put that program in place.
    But the mining industry, even today, doesn't want to pay 
for the minerals that are on Federal lands. These are 
taxpayers' minerals that the companies believe that they should 
get for free. For free.
    Now, over in the House of Representatives I was the ranking 
member on the National Resources Committee, and I introduced a 
bill saying that they should have to pay. You can't have this 
bargain basement giveaway sale any longer. We need a revenue 
stream so that we can put programs in place that ensure that we 
begin to work on the worst of these sites in a much more 
aggressive fashion.
    That is something that you would think we could agree that 
is necessary 147 years later, after the law was passed to deal 
with the mess, the obvious mess that has been created.
    So do you agree, Madam Administrator, that the revenue 
stream is just completely insufficient in order to deal with 
the magnitude of the problem which this incident demonstrates 
is just looming out there as a continuing threat to the 
environment of our country?
    Ms. McCarthy. I think the President's fiscal year 2016 
budget and earlier that suggested that we need a fee revenue 
that is based on the polluter pays principle, that is exactly 
the same way that coal mines are treated and those abandoned 
coal mines are cleaned up. It is the same kind of source that 
we need to be looking for here to be instituted by Congress to 
begin to tackle this issue more effectively.
    Senator Markey. I would hope my Republican friends could 
agree that it is time for us to put a fee on this. Giving it 
away, letting them mine, letting them abandon, and then not 
having a revenue source to deal with the mess that is created 
makes no sense at all. I would hope that we could work together 
on this. Although I found in the House of Representatives it 
was impossible to find Republican supporters for something like 
this.
    It does leave kind of a regulatory black hole. And the 
alternative, of course, that some Republicans continue to 
propound, is that we should have a kind of a Good Samaritan law 
where we just kind of waive the rules. Waive them. I think that 
whatever minimal set of laws we have on the books just can't be 
cavalierly waived, that is kind of the last wall of 
environmental protections which we have. So you have to be very 
careful when you go down that route.
    But it would just seem to me that, I know that people don't 
like to hear it, but you need money. When you have 160,000 or 
500,000 abandoned mines, all potentially leaching into now a 
much more populated Colorado, a much more populated New Mexico, 
because of those policies, that you now have a danger with 
regard to the health, the air, the water, of people who live 
near them. It is time for us to do something about it.
    Thank you, Madam Administrator, for your great work.
    Senator Inhofe. Thank you, Senator Markey.
    Senator Barrasso.
    Senator Barrasso. Thank you, Mr. Chairman.
    And thank you, Madam Administrator. It is good to see you. 
Later today I will be chairing the Indian Affairs Committee to 
better understand how the EPA's actions are impacting the 
Indian tribes downstream from the Gold King site. I thank you 
for agreeing to appear, and I anticipate we will again have a 
similar robust discussion.
    Senator Bennet, who was on the panel before you came in, 
said, there is no denying that EPA caused this disaster. He is 
very thoughtful. This has happened in his home State. He has a 
bipartisan concern about what happened.
    And my question to you is, isn't it true that when a 
private company is accused of violating the Clean Water Act 
that the EPA, under your specific leadership, has aggressively 
pursued civil fines against the company and individuals within 
the company? Isn't it true that if there was a 3 million gallon 
toxic spill caused by actions of private citizens that the EPA 
would act aggressively against that company, against those 
citizens? How large of a fine would the EPA be pursuing under 
those cases?
    Ms. McCarthy. Senator, we were there to correct what we 
know to be a significant problem. There is no question that the 
actions of EPA contributed to this spill.
    But that does not mean that we or another private sector 
person would be accused of violating intentionally the Clean 
Water Act. They would be told to do exactly what we are doing, 
which is to aggressively get their people to safety, 
aggressively stop the spill, make sure it didn't happen again.
    Senator Barrasso. The EPA caused this disaster. That is 
what Senator Bennet says and I agree with him. I just think the 
EPA ought to be held to even a higher standard.
    But the aggressive nature of this EPA under your direction 
I think says that there is clearly a double standard between 
the way that EPA treats itself and looks to itself and how it 
treats private companies.
    On a second but related EPA water management issue, I would 
like to discuss the EPA's Waters of the United States Rule. 
Over and over again, the preamble to the Waters of the United 
States rule says that it is based on ``the science and the 
expertise and experience of the agencies.'' Doesn't appear to 
have any support for these statements in any of the rulemaking 
record.
    In an attempt to understand the basis for the final rule, 
this committee, through the leadership of our chairman, sent 
letters to EPA and the Army Corps of Engineers asking for 
documents that support the final rule. Asking EPA for copies of 
the scientific studies, asking the Army Corps of Engineers for 
examples of field experience, because you say you use both.
    In a letter dated August 17, Deputy Assistant Administrator 
Ken Kopocis did not identify any scientific studies to support 
the decisions made in the final ruling. Instead, he offered the 
staff a briefing. At that briefing, the EPA took the position 
that the ``science'' just supports the idea that all water is 
connected. He said all water is connected.
    That is not the law of the land, is it? The law talks about 
navigable waters and the Federal Government. That is the best 
that your Administration could do for the EPA about waters. It 
is all connected. That is their science.
    Separately, in a letter dated August 28, Assistant 
Secretary of the Army Jo-Ellen Darcy told the committee that 
the Army didn't rely on any field observations to support the 
rule. None. But that is what you say they did. So this 
statement is consistent with memos that General Peabody of the 
Corps sent to the Secretary when the final rule was under 
review.
    So if the final rule isn't based on any science and the 
final rule isn't based on the Corps' experience in the field, 
what did you base it on?
    Ms. McCarthy. Senator, we did base it on the science and 
experience of both the EPA and the Army.
    Senator Barrasso. That is not what your staff and the Army 
Corps of Engineers is saying. It sounds to me that you are 
making it up as you go, and you are in charge of everything.
    Ms. McCarthy. But I would point the committee to the record 
on our work we have done on the water connectivity study which 
does look at more than, I think, close to 2,000 studies that is 
available, that went through the normal science advisory board 
subcommittee process. In fact, we also have the technical 
support document that is in the record that is the basis for 
many of the decisions in the Clean Water Rule.
    So those are already available. Perhaps we could sit down 
with your staff again.
    Senator Barrasso. We would like to do that because it is 
still based on the idea that all water is connected, period. 
And we would disagree with you on that.
    Ms. McCarthy. OK.
    Senator Barrasso. Finally, in August the EPA released the 
Federal Clean Power Plant Final Rule. The economies in many 
States, including my home State of Wyoming, are going to be 
devastated by this. According to a study issued August 4th 
through the University of Wyoming, our public policy energy 
economics, we could face the loss of 7,000 to 11,000 jobs in 
just the coal mining, coal generation, coal transport sectors. 
That doesn't account for all the local businesses that are 
going to lose revenue as a result of these job losses.
    The study also found that my State could lose up to 60 
percent of its State coal revenue, which is money that goes to 
fund schools, roads, water treatment facilities, emergency 
medical services, all things that makes people's lives better, 
keeps them safer.
    So your plan is taking that away from people in my State 
and other States, States that have strong energy sectors. The 
costs of your regulations are real, they are immediate, and 
they are destructive. The benefits of your regulations are 
theoretical and unproven. My question is, how does your Clean 
Power Plan mitigate those impacts and the direct damage that 
your new regulations do to Wyoming people, people from other 
States? And how do you make those lives whole?
    Ms. McCarthy. We actually believe we have done this rule in 
a way that is flexible, that looked at States' concerns, that 
provided significant time, that is going to achieve significant 
reductions, that will allow us to provide leadership we need to 
address what is essentially the greatest environmental 
challenge of our time, which is the challenge of climate 
change.
    Senator Barrasso. Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Barrasso.
    Senator Capito.
    Ms. McCarthy. I apologize, Mr. Chairman, I just wanted to 
let you know that I did get the information you were seeking on 
the Clean Power Plan and when the rule was submitted. So I can 
provide that.
    Senator Inhofe. The September 4th deadline, is that what 
you are talking about?
    Ms. McCarthy. Yes, it was sent to the Register on September 
4th, and we still expect it to be published in October. So I 
just wanted to let you know.
    Senator Inhofe. So it was submitted on September 4th.
    Ms. McCarthy. That's correct.
    Senator Inhofe. Thank you very much.
    Senator Capito.
    Senator Capito. Thank you, Madam Administrator. Thank you 
for being here.
    Just a quick question on the contractor issue. It has been 
mentioned that EPA had contracted a private contractor to do 
the work. Does the private contractor have a liability issue 
here, or is that something that they are released from when 
they contract with EPA?
    Ms. McCarthy. The contractor has to follow the work plan 
and the task order that they have been given. It is a 
contractor that has been working with the agency for a number 
of years and has worked on 15 mine sites before. But they were 
working under the direction of our on-scene coordinator.
    Senator Capito. So they were taking direction from EPA, so 
those were EPA's direct orders that actually caused the damage?
    Ms. McCarthy. The work plan that we developed was being 
followed as far as I know. But that is one of the things that 
we would expect an independent review to look at.
    Senator Capito. Yes, I am looking for accountability here, 
as I think we all are, and you are as well.
    Because as you know, I live in a community that has had our 
waters, we had the chemical spill causing a lot of disruption 
and a lot of health concerns and other concerns. Those 
executives have just recently been sentenced and will be 
serving time.
    But one of the issues that came out of this is business 
interruption. Senator Gardner brought this up about rafters, I 
think Senator Bennet as well, other people who have lost their 
revenues for the year because of this. Then they are going to 
have the stigma attached to it which is going to be even more 
difficult for them to regain this.
    Is this part of your restitution, that you could possibly 
go back to a community, is that within the bounds of the EPA to 
be able to do things like this?
    Ms. McCarthy. Senator, first of all, EPA is not arguing 
that we are responsible for the clean up here.
    Senator Capito. Right.
    Ms. McCarthy. So whatever happens with the contractor 
happens, but we are taking full responsibility. There is a 
claim process, in fact we received a number of claims from 
small businesses exactly related to the issues that you 
identified. The Federal law that allows those claims to be 
processed appropriately and we will do that. Those are well 
within the boundaries of what a Federal Claims Tort Act is 
supposed to be compensating.
    Senator Capito. OK, so I would love to have follow up on 
that to know how successful that has been. I see the president 
of the Navajo Nation there, and it is very important for them 
as well.
    Another issue that was on the crisis response plan, Senator 
Gardner mentioned when he was onsite 4 days later, there was 
still not an adequate appropriate crisis response plan or team 
in place. Would you have a response to that?
    Ms. McCarthy. I apologize that I was not here, I wasn't 
realizing that the Senator was testifying. So we actually had a 
response team in place, we had on-scene coordinators, we had 
more than a couple of hundred EPA staff. We immediately put 
them in motion, how to set up incident command centers. We had 
an area command center that we have since set up. We moved as 
quickly as we could.
    But we will always be able to look back and see whether we 
could have done it better, could we have done it quicker, what 
are the lessons we need to learn from this.
    Senator Capito. Do you anticipate that will be part of the 
report, that they'll be looking at the crisis report, the 
crisis response?
    Ms. McCarthy. If they don't, I know the Office of Inspector 
General will certainly be looking at that, and EPA 
independently will be looking at that as well.
    Senator Capito. Because that was a huge issue in the spill 
that we had. And also in the timing, I think there was some, 
the National Response Center was not notified until an hour and 
half later. You were lucky because you were able to get the 
downwater folks who had water intakes to be able, you had 
enough mileage there.
    Ms. McCarthy. Yes, we did.
    Senator Capito. But if at the source, which happened in our 
community, you wouldn't have had that time. And it was blamed 
on lack of cell service in the area. Living in a rural 
community I can identify with that. But certainly there would 
be some kind of satellite phone, or some other way to get an 
immediate response.
    Ms. McCarthy. That is one of the things we are looking at, 
Senator. We agree that we could have done better on 
notifications. It is a process we work on with the States. And 
in this case we were in a remote area, we know we got hold of 
our State partners immediately. Those partners went down and 
notified the National Response Center and it triggered all of 
the appropriate notifications.
    As you said, the good news is we got there before the plume 
did and any of the areas in which it could have caused a 
problem in terms of irrigation diversions or other water 
infrastructure diversion.
    Senator Capito. Then I think the controversy of the 1 
million as opposed to the 3 million is something we need to 
examine as well. Other issues that come to my mind are the 
health issues, medical monitoring and such. You don't really 
know with the combination of the metals that are in this water, 
has that been sufficiently tested? Do we know what the serious 
effects are? I am just raising questions that I think need to 
be raised.
    I would like to say, just in final, because I just have a 
couple of seconds remaining, on the Clean Power Plan. You know 
this is going to impact my State a great deal. We have the 
highest unemployment in our State right now, and it is directly 
attributable to a lot of things, natural gas, yes. But also to 
the regulatory environment, everything you see. We have 
thousands of West Virginians who have lost their jobs. It is a 
concern to me every day.
    It is a sad affair. I wish you would come and talk with the 
folks that these regulations are very deeply affecting. It is 
difficult for our county commissioners, who are laying off 
people, their school systems can no longer function because of 
lack of tax revenue, our unemployment fund in our State is now 
under serious attack.
    We are hurting here. And when this regulation goes into 
effect, it is going to have an even more devastating effect on 
us directly, probably our State most directly affected. Thank 
you.
    Senator Inhofe. Thank you, Senator Capito.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman.
    Thank you very much for being here today. I think the issue 
of the double standard really is important. People have lost 
faith in government. Your agency has a reputation of being 
aggressive, sometimes heavy handed, in dealing with individuals 
that have had problems in this regard. It seems like the 
initial reaction, and you did the right things early on.
    The initial reaction of the agency really did seem to 
downplay the extent of the damage. That went on until literally 
the river turned orange and then everybody could figure out 
this was a big deal. Statements like ``the water is healing 
itself,'' if an oil executive would have said things like that 
people would have gone ballistic.
    So again we will have to wait and see what comes out of the 
IG report; we will have to wait until the Department of 
Interior, things like that. But I do think it is fair to say 
that the initial reaction downplaying or appearing to downplay 
in regard to the public, I think we have enough information to 
say that was done very, very poorly.
    Mr. McCarthy. Senator, I appreciate your concern. There is 
no way in which EPA should have downplayed this spill. I 
certainly did not. We have taken full responsibility, and I 
will work hard to show you that we are following the same 
standards of excellence that we demand of others. This was a 
devastating thing not just for those communities but for EPA as 
well.
    And we will learn from this, but it has been a very, very 
hard lesson for all of us, and it will continue. We have long 
term obligations here, and I have made it very clear that EPA 
is not going away, and it is going to meet those long term 
responsibilities.
    Senator Boozman. Thank you. You mentioned earlier that you 
have an old mine, and again I don't understand all that is 
going on in there, but pressure built up and all of those kinds 
of things.
    I guess with all of that happening, why, I believe on 
September 9th, in the House Science Committee a witness 
testified that an engineer wasn't consulted. Why is that the 
case? Why would an engineer not be involved in the planning? 
One of the witnesses testified the work at the Gold King Mine 
was not developed by a professional engineer. Why would that be 
the case?
    Ms. McCarthy. I do not know why that was stated. My 
understanding is that the actual work plan, EPA was called in 
to assist for the very reason a problem happened, which is that 
a blowout was seen as likely inevitable and we wanted to get in 
and help the State take care of that, at their request. Our OSC 
was a mining engineer, our on-scene coordinator. We developed 
this plan with the State. We both developed this plan.
    Then we worked with the Animas River stakeholder group 
which is filled with mining experts and local constituencies, 
and we did public hearings on this work plan before we actually 
initiated the work.
    So we had a lot of engineering expertise and eyes on this 
work plan. The way this happened was as sad for us as it was 
for anybody. We did not certainly anticipate that the work we 
were doing would have aggravated the situation. We were there 
to actually relieve the situation that we knew was building up.
    Senator Boozman. We will look and see about the 
discrepancy. My understanding is that the removal actions are 
classified into three categories: emergency, time critical, 
non-time critical. Can you tell us what the difference is in 
the sense of which category to use for a particular action?
    Ms. McCarthy. Senator, if it is possible I am happy to 
respond in writing afterwards. I am not sure I will get the 
nuances correct.
    Senator Boozman. I can identify with that. Thank you very 
much.
    Ms. McCarthy. Thank you.
    Senator Inhofe. Thank you, Senator Boozman.
    Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Welcome, Administrator. I like to kind of drill down on 
some items that Senator Capito brought up about cell phone 
coverage. In the Omaha World Herald there was an article on 
September 12th that stated there was no cell phone coverage at 
the gold mine the day of the spill. That was confirmed in an 
August 16th e-mail that was posted on your agency's Web site 
which also said, ``No satellite phone was at the local.''
    So just to clarify, there wasn't a cell phone, there was no 
satellite phone, there was no way to immediately communicate to 
those downstream when the toxic water began rushing out. So my 
question is, was the EPA really properly prepared to inform 
local communities if there was a spill that happened, and which 
did happen?
    Ms. McCarthy. Senator, I cannot at this point confirm to 
you about the cell coverage. I apologize, I will get back to 
you on that.
    But clearly, better notification would have been beneficial 
to all of us. That is one of the reasons why we have actually 
asked for a review of all of this internally and a beefing up 
of our notification process. It is a very secluded and 
difficult place to reach. But we did get in touch with our 
colleagues in Colorado very quickly. We were able to get to 
those downstream areas and make sure that those diversions were 
protected before the plume arrived there. Because it is quite a 
distance away from any populated area.
    Senator Fischer. And I would imagine that you will be 
looking at how plans are developed in the future too, not just 
with the subcontractors but also EPA itself.
    Ms. McCarthy. Absolutely, our internal review indicated 
that that is one of our first orders of business.
    Senator Fischer. And to follow up with Senator Boozman, he 
said the plan was not developed by professional engineers with 
the subcontractor, and they were the ones that were performing 
the work onsite when the blowout occurred. Is that correct?
    Ms. McCarthy. Under the direction of the on-scene 
coordinator.
    Senator Fischer. Did the EPA have an emergency action plan? 
Any kind of contingency plan on your own?
    Ms. McCarthy. The EPA required it from the contractor. The 
contractor developed their own, and that is something our 
internal review looked at. But there may be broader emergency 
plans that are also appropriate that I can't speak to at this 
point.
    Senator Fischer. Did I understand you correctly when you 
said the EPA was very active in developing the plan with the 
subcontractor, is that correct? The health and safety plan?
    Ms. McCarthy. The work plan for the actual actions and work 
at the site was developed with the State of Colorado and EPA.
    Senator Fischer. The health and safety plan, were you 
involved in that development?
    Ms. McCarthy. I do not know whether there was back and 
forth with the contractor. The contractor did develop a plan, 
but that plan was seen by the internal review team when they 
looked at it, at EPA as being inadequate to address a blowout 
situation.
    Senator Fischer. Do you have copies of correspondence you 
could provide us with that would outline the involvement of 
EPA?
    Ms. McCarthy. Well, on the Web already there is both the 
request for proposal, there is the work plan, there is the task 
order. All of those issues have been posted. I do not know 
whether there is additional communication that we can provide.
    Senator Fischer. I would really like to see the health and 
safety plan and be able to understand in more detail the 
involvement of EPA in that.
    Ms. McCarthy. We are happy to point that out to you, 
Senator.
    Senator Fischer. I hear a lot of confusion on the plan and 
how important it could have been in this spill we are dealing 
with here.
    I would like to question you, I have a few seconds left 
here, about notifications to the jurisdictions within the State 
of Colorado. It is my understanding that in fact the EPA did 
not notify irrigation districts, and they did not know about 
this until the yellow plume reached their irrigation waters. 
Have you been made aware of any information concerning that?
    Ms. McCarthy. Well, I am aware, Senator, that the way in 
which we develop contingency plans is for us to very much rely 
on the State to know where those diversions are, and to be able 
to work with us to appropriately identify and notify all of the 
key stakeholders here. I do not know of anything in particular 
but I am happy to follow up if you have names that are 
concerned.
    Senator Fischer. Would you say the EPA has followed all the 
notice requirements of section 103 of the Comprehensive 
Environmental Response Compensation and Liability Act, as well 
as section 304 of the Emergency Planning and Community Right to 
Know Act? There is some discrepancy out there on if the EPA 
really did follow the requirements that you are supposed to do.
    Ms. McCarthy. I am happy to get back to you on it. 
Obviously, I don't have those at my fingertips. But I think we 
have very much said that the notification could have been 
better. One of things we identified that we followed up is that 
we have to continually update these lists as does the State 
working hand in hand with us. Because clearly, we don't want 
EPA wanting to know the business of every river and stream. But 
we need to make sure we constantly do that and test to make 
sure we have done it right. So we will get to those issues, and 
we are not suggesting that there isn't room for improvement 
here.
    Senator Fischer. If you could get back to me in a timely 
manner I would appreciate it. I always thank you for offering 
to get back, but sometimes it is months and months and months. 
So if you could try to get me some information, why don't we 
say by Thanksgiving, that would be helpful.
    Ms. McCarthy. Well, I think we will try to do better than 
that.
    Senator Fischer. I would appreciate that. Thank you, 
Administrator.
    Senator Inhofe. Thank you, Senator Fischer, and thank you, 
Madam Administrator. We are adjourned.
    [Whereupon, at 11:36 a.m., the hearing was adjourned.]
    [An additional statement submitted for the record follows:]

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

    The Gold King Mine Spill is and will continue to be an 
environmental nightmare for Colorado and other western States. 
So I thank Chairman Inhofe for drawing attention to this 
important issue.
    I share the frustration of my colleagues on both sides of 
the aisle with this situation. I think we can agree that 3 
million gallons of contaminated wastewater flowing into a 
tributary of the Animas River is a serious problem. 
Consequences will likely be long-lived and are already 
widespread across Colorado, New Mexico, and Utah. Rivers in 
these regions provide water to homes, farms, and recreational 
areas. Thankfully, EPA is taking action, and progress is being 
made to aid in the clean up effort.
    Today we are likely to hear from my Republican colleagues 
lots of talk about negligence, but this finger pointing I 
believe is misguided and lacks understanding of the original 
problem--the polluters. It also won't take away the fact that 
clean up at the Colorado site, which includes operation of a 
temporary water treatment facility, will cost around $3 
million. And because the Gold King mine was not designated a 
Superfund site, the region is not privy to larger pots of the 
Superfund Remedial Program funding.
    What we will not hear from our Republican colleagues is 
that, according to the GAO, there are 161,000 abandoned hard 
rock mine sites in 12 western States and Alaska. Of those, 
33,000 have degraded environmental conditions. These abandoned 
sites don't clean themselves up. Some have been festering for 
decades upon decades. Cleaning up these sites isn't free. So 
one would think that the both parties would be interested in 
actually making sure we can clean up these mines responsibly 
and with adequate resources. Especially because in the U.S. 
close to 50 million people live within 3 miles of Superfund 
sites.
    The Superfund account has been shrinking each year since 
fiscal year 2010, from $1.3 billion down to $1.08 billion in 
2014. This year, the President's budget asked for $1.15 
billion. The House came back with $1.09 billion, while the 
Senate reported out $1.1 billion. The trend was similar last 
year, where the President requested $1.16 billion and enacted 
level was at $1.09 billion. It's our job to make sure the 
programs which protect our communities and environment are 
working.
    EPA also administers other important clean up programs like 
the brownfields program and the Leaking Underground Storage 
Tank Trust Fund.
    The brownfields program helps underwrite the clean up of 
sites not covered under the Superfund program. According to the 
EPA, every dollar invested in brownfield clean up has been 
shown to yield nearly $18 in economic development benefits--
from new jobs to development of remediated sites to increased 
property values in surrounding areas. Rhode Island has 
benefited from the program, and this year we received five 
clean up grants totaling $1.32 million.
    As we look for a way forward on the Gold King Mine clean 
up, I urge my colleagues to consider the environmental and 
economic consequences of consistently shortchanging 
environmental tools like the Superfund account. The 
Environmental Protection Agency's mission--to protect human 
health and the environment--is one of the most fundamental 
responsibilities of the Federal Government. EPA is developing 
and implementing some of the most important health protections 
ever needed, and they need continued support from Congress to 
do so.
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