Transcripts For CSPAN3 Politics And Public Policy Today 20150921

Epa is only involved in actually a small percentage of those. Why . Because the authority to look at these is spread among a number of agencies, and epa can you break it down so that we have an idea of what the problem really is with some of these mines that may affect the health and welfare of our communities . We can do our best but i can tell you that the ones we follow are the ones on the National Priorities list and the ones where we work with states to address what we consider to be an imminent threat or a need for emergency response. The upper animus was in that category. I would like to see if you can answer some of this for the whole committee. I am glad mr. Bishop is worried about fish and wildlife and the endangered species. Thats something that is near and dear to a lot of us. With that, your budgeting. How much budget do you require to be able to do a job to maybe look at avoiding what happened at las animus . We have an entiermevironmentd that allows us to tap for the response actions. How much is that . Fiscal years 2015 superfund remadiation action budget is 501 million. Is that does it have to be on the superfund . Does it have to be a designated superfund site . No, it doesnt. This is for remedial action we need to take, whether on the superfund list or not. Youre currently working on how many mines to be able to address the issues . Im sorry. Ill have to get back to you. Would you, please, because that would kind of answer some of the questions i have. How many other agencies . Okay. How many other agencies are involved or should be involved besides fish and wildlife, the National Institute of health, for being able to determine the status of the Health Concerns . Cdc . What about bureau of indian affairs. What role do they play in being able to notify native american tribes . Are they immediate . Or do you work with them . Or do you get them involved immediately and task them with doing the outreach . And how many other areas do we have that are really concerning in terms of contamination that are cancer cancerous, lead, arsenic, uranium, gold and copper mines. What are the minerals there that are going to affect the health of our nation . There are at least 161,000 abandoned mines. While were talking about ones we know, there are so many that we dont know. And we know we have experience in looking at these mines, and they involve sudden releases like the ones we were talking about here and the potential for that. Theres periodic mine discharges that are impacting headwaters. Theres a lot of them. I am running out of time, but i want to be sure that my colleague in pennsylvania, if there is a continuous release, is that one of the areas that epa may be looking at to be able to help address the issue . Well, the challenge for us is really there are a lot of these issues. I do not know whether that specific one is on the npo. I doubt that. Shaking his head no behind you, so they dont know. But when a state wants us to come in and work with them we do our is it only at the request of a state . Or do we have the ability to have you look at a lot of these mines . We make priorities depending upon what we find out and what were asked to do. The challenge is its limited. That doesnt take care of the longterm problem. It takes care of shortterm problems. We recognize the gentleman from florida. Mr. Evans. Thank you. Let me kind of pick up where mr. Gohmert, gentleman from texas, left off on the issue of accountability. Mmhmm. If a private company or a corporation or individual dumped 7,500 gallons of toxic chemical into a natural waterway, wouldnt there be a penalty, wouldnt they wouldnt you hold them accountable . It all depends on the circumstances, sir. We would hold them accountable you would investigate. For the cleanup. Whether there would be a penalty involved would depend on the circumstances. But someone would be held accountable. Thats correct. Responsible, you would review that. Yes. You do that. Thats part of your responsibility. Yes. One of the frustrations, i think, that members of congress and the American People have is that Holding Agencies accountable. Now, youve been there since july of 2013. You were there during the spill. Is that correct . Yes. Okay. And you are in charge of the agency. Yes, sir. Is there an ses individual below you or a deputy that also would be responsible . For this for, you know, looking at this matter and overseeing it . I have an assistant administrator. Okay. Who is that . Maddie stanislos. You have a regional. Thats correct. Shaun mcgrath . Thats correct. You have an onscene epa onscene coordinator. Who is that for the record . I do not know the individuals name. You have conducted some preliminary investigation. Yes. Everything we see, it looks like there was a mistake. You have a contractor, too, who yeah. Epa was overseeing. Yeah. Who is being held accountable, based on the information that you have so far . Well, one of the reasons why we asked dio to do an independent investigation was to make sure that somebody independently looked at that and provided us information so that we could follow up to see if there was any lack of judgment or lack of oversight or foresight. Thats not complete. No, sir. That will be completed in october. I want you to tell the committee and report back to the c committee who is held responsible. I reviewed some of the bonuses given to different agencies in the past. Historically epa has paid some of the biggest performance award. Ses class folks, 64 of them got bonuses. I want to know if there are any recommendations pending for bonuses for any of these individuals, and that made part of the record. I would like the next 30 days. Anything pending. And then also, i want, for the longterm record, for you to report back to the committee the findings and who is held accountable i think thats the least we can do. Then whats actioned what action is taken to those individuals who have done this damage to the environment and caused untold damage to the people sitting behind you who were going to hear from. Then the other thing, too, is the estimate of the cost for getting this all back to regular. I understand. Order. Do you have any estimate . In terms of what it would take . I know weve already spent somewhere upwards of 10 million. We expect that will go up considerably over time. But, again, the challenge we have is to look at the upper animus river. While there may be some continued discharge from the Gold King Mine, there continues to be a much larger discharge from that area 10 million. That was just the immediate response. This is a reasonable request that we hold you and others accountable who are responsible for this. It can be based on the independent findings, but were looking at 10 million of cost, a disruption to many parties. Is that correct . I fully recognize and i expect to be held accountable. Thats the job of this committee, and i fully respect it. I will cooperate in any way i can. Final, ive got just a second here. We have pending on some court issues dealing with the redefinition of navigable waters and the rule. Whats the status, very briefly, of that . Is the rule going into place . Is it on hold . What are you doing . The rule is actually being implemented, except, i believe, in the 13 states where there was a decision by a judge to actually issue a preliminary injunction. So, in all but those 13 states is being fully implemented as were sitting here, yes. Thank you. Thank the gentleman. Well now recognize the gentleman from missouri, mr. Clay, for five minutes. Thank you, mr. Chairman. Let me ask administrator mccarthy. Most of the cleanup of Hazardous Waste from abandoned and inactive hardrock mines like gold king is carried out by the epa and State Government agencies. Thats right. The Hazardous Waste at these abandoned mines was caused, however, by the activities of Mining Companies, not epa or State Governments. Correct . Is that correct . That is correct. It was the Mining Companies that made the mess, but those companies are not the ones cleaning it up. Do mine owners or operators have any legal obligation to clean up the pollution they leave behind . Its my understanding that there is some liability in some cases but consistently there in these legacy sites, the owners are absent from the discussion. Why is epa involved at all in the cleanup of inactive mines like gold king . Well, we were there because of the concern of a potential blowout and the concern of the Water Quality that was being consistently degraded from the mine seepage that was entering into the cement creek and the animas river. The cement creek literally has, as far as i know, no fish whatsoever. And for miles downstream in the animas the fish population is almost gone down to zero. So epa has been looking at this as a potential npl site, a superfund site. Short of that, looking at how we coordinate with the state and the local stakeholders to address the challenge short of issuing a decision to put it on the npl site. There are constant pollutants seeping into the river from the mine and its been going on for years. And large discharges. There is no question that the animas has been struggling, but our hope was that we could continue to Work Together and get that quality shifted into another direction and get the quality continually improved instead of degraded. Of course, todays hearing you dont have to respond to this, but todays hearing is to blame the epa for the callous disregard of Mining Companies, not to be in good stewards of our environment. And i think its a farce, what we are conducting here with you. Let me i understand that, for abandoned and inactive coal mines there is a dedicated Funding Source for mine waste cleanup which is derived from fees collected on each ton of coal mined in this country. There a similar Funding Source for hardrock mine remediation . There is not, but that is what the president s fiscal year 16 proposed budget is suggesting should happen. Are mine owners financing the cleanup of the mine waste that pollutes the land and rivers for decades after the mines cease operations . In most cases, no, sir. Oh, lord. Oh, my. Do you believe president s proposal, if enacted, would help provide necessary resources for cleaning up abandoned mines . I do, sir. Its about time that we as a congress get serious about responsible parties and who is responsible for making this mess and cleaning it up. Its the same thing with radio active waste, left all over the landscape, and nobody wants to take responsibility for it. And yet you want to dump on the epa today. I think this is we should be ashamed of ourselves. We should be ashamed of what were doing in this committee today. You know, the current owner of Gold King Mine, todd ennis, told cnn in august and i quote ive been predicting for the last 14 years that the situation would continue getting worse and worse. I foresaw disaster, and that has been borne out. Well, why are taxpayers responsible for cleaning up abandoned mines while owners can sit back and do nothing . I mean, this is thats the question we need to be asking as a committee. Why dont they have any responsibility when they made the mess . And you know, we all have a responsibility to be good stewards of the environment, but in this case we are letting one party off. Mr. Chairman, i yield back my time. I thank the gentleman, and i hope he has the guts and stand here to ask the president of the Navajo Nation if what were doing here today is the farce. I hope we have the guts as a congress to actually try to clean it up and stop pointing fingers. Now, thats what i hope. Well see if you ask the Navajo Nation if its a farce. Well now recognize the gentleman from louisiana, mr. Fleming, for five minutes. Ms. Mccarthy, in louisiana we have a saying that the chef should occasionally taste her own sauce. What do i mean by that . I want to bring up a different issue, but it is connected. Are you familiar with the camp mendon issue relative to the epa . It was handled out of dallas. Yes, i am. There was a big explosion in 2012 as a result of propellant, this explosive that had accumulated over 15 Million Pounds. And it was a lack of oversight by the u. S. Army over this private company that allowed this to happen. So we had the problem with how were we going to get rid of this 15 Million Pounds. And of course epa became involved. But we were shocked that the epa, first of all, said, well, were not sure. I guess, you know, the local state will probably have to pay for it. We finally got money from the superfund. But then, after analysis, the epa said, were just going to burn it in the open, which means all of these toxic substances, arsenic, lead, whatever, going into the air, into our ground and into our water. Think back about the coal industry thats been more or less severely hampered if not shut down because of c02 emissions which is certainly not as toxic, if toxic at all, as arsenic and lead. Coalfired plants being shut down. Now weve got the waters of the u. S. But i was shocked, and the local community was shocked, when the epa came in and said we see nothing wrong with open burn of 15 Million Pounds of propellant. And we pushed back on it. We had many hearings locally. We finally got the epa to back down and to allow a closed burning, which is a more costly procedure. But it really seems to me ironic that the epa, which can provide huge fines on private industry and individuals, can actually put people in jail through criminal activities of pollution, would be so cavalier in this case and, in fact, only because of pushback from community did we get the epa to do the right thing. The epa was clearly trying to take the shortcuts and avoid the cost. And then you look at this situation. Incompetently the epa allowed, of course, this toxic spill, this water that is now in our environment. It will never be cleaned up completely. So i guess what im saying is it seems like to me there is a double standard. The epa is not holding itself to the same standards that you hold individuals and industry itself to. Well, sir, let me respond on camp mendon because i couldnt be more pleased of the outcome. It took a long time to get there, and i do appreciate the way in which the state int intervininte intervened on that as well as the elected officials. It was an option chosen by the d. O. D. It was not an uncontrolled burn. But i think we have ended up in a much better place and one that the community really participated wonderfully well in. I couldnt be more pleased. In terms of this effort, i want you to understand, and i i am sure that you do that epas job was to try to support an effort to address what we knew was almost a likely inevitability of a blowout at that mine, as well as knowing that the river was being damaged, each and every day, as a result of the mining in the upper animas. Should that spill have occurred . No. Are we going to figure out whether we could have done something about it, done Something Different here is my question. I appreciate that. My question is that private citizens, americans and companies are held to a high standard, and the punishments are severe. But were not hearing today of any punishments or even reduction in pay or even firings that are going to occur because of this incompetency. So thats the point i am making is a double standard. Yes, i know youre doing the best you can and so forth. One agency after another. The v. A. And now the epa has these responsibilities and these broad powers that no Single Company has to inflict ql zmdam to inflict severe punishment and penalties on americans. And yet we dont find anything within the agency where the decisionmakers and the people with all this power have any accountability for that. Sir, when a spill like this happens, the accountability is for the person who actually needs to take responsibility for that for that spill to do so. Which we had. And the second level is, how did it happen, and was there activity that should have been done differently . Is it criminal . Is it civil . Is it negligent . Thats what were looking at how, and were independently having that done. And i will live with those consequences and i will appropriately take action. We certainly want to hear who the Decision Makers were. Well recognize the gentlewoman from massachusetts. Thank you. Welcome, administrator mccarthy, this has not been a simple conversation for you. Epa a lot of questions have been raised. On both sides of the aisle, we were all dismayed to see the horrific way in which the river was impacted. I come from a district where rivers have run different colors depending on the dye cast into them at the end of the manufacturing day. Were all very concerned about how we care for our rivers. And obviously this spill does warrant an investigation. But i do think i have to give you credit for being willing to be here and answer appropriately the questions that we all have. So i want to thank you for it. And i think its somewhat disingenuous to compare this with a private spill. As we have heard, you all have, first of all, proactively made a decision to investigate yourselves through the Inspector General and the epa and to the bureau of reclamation as well as doing an investigation, and as youve said, you will accept the outcome of that and take appropriate actions. What is also different here is that this is a legacy site. Mine operators who benefited from the various metals that were in those grounds have subsequently abandoned them and left an environmental mess. And we have a difficult time holding them accountable. And you have said that you were there because of concern with a blowout, the possibility of a blowout, and the degraded Water Quality. And youve also noted there are 161,000 such abandoned mines in which these issues present the epa with a challenge of how best to fix them. So youve also talked about that, given that long list, you create a National Priorities list. And i am curious and think it would really be helpful for you to explain how you prioritize given the vast number of mines that have the Great Potential to pose such harm to our environment. Well, we actually prioritize in a couple different ways. We have factors that we consider in terms of what deserves to be on the National Priorities list. In this particular case we started back in the mid 90s looking at this and actually suggesting that it be on the National Priorities list. What we found at that point in time was that the communities and the states were getting together an animas river Stake Holder Group who insisted they could do a good job addressing this issue without taking that measure. They actually did a good job. You will until 2005 the river was getting cleaner all the time. But there was a turnaround in the river. That turnaround meant we were getting more discharges. We see fish populations degradingme degrading. Thats why we were continuing to look at it as of 2008 to see if we should look at the upper creek, the cement creek, as the section that we would articulate and look at for the National Priorities list. Out of that discussion came a collaborative effort with the state and the animas River Watershed Group to actually is that right . Animas river Stake Holder Group to take a look at what we could do. Thats when the concern of a blowout arose and we started working on a work plan that was very public, went to public hearings, about what epa could do to try to address that issue while people looked at the longterm challenge and thought about how best to do it. Thats the history of this site. It is a long one, and obviously today not a successful one. And so the local community how did the communities initiate their interaction with the epa . What was the process by which that took place . Actually, weve been working with them since at least the mid 90s is how far back it goes. They pulled together this Stakeholder Group that was post people who worked in the mines, it was public citizens, it was local leaders, it was state representatives, epa helped to participate in some of those. It really just became a collaborative effort, knowing that they had a large problem and that we had to Work Together. And that became the tone of the discussion. Epa was not there, you know, to work as a lone entity. It was there to share ideas, to bring our mining experts to the table, to work with the state of colorado and folks who knew the area better than we did, and t o identify what the work should happen. That was the work plan that we were working under at the time that this spill occurred. It was fully developed, with everybodys input, with public hearings. Did we underestimate the potential of the spill at the site . Did we do something we shouldnt . Those are the questions the independent review will give a fresh eye to. It wasnt because we didnt try, and it wasnt because we werent working collaboratively. Was the former mine operator part of any of those discussion . Sorry. The gentlewomans time has expired. Thank you, mr. Chairman and administrator mccarthy, thank you for being here. Before i go back to some responsibility questions, let me get to something i think is practical, especially since snowy weather, winter, may indeed be coming to this very soon, this area. Its expected that snow and wintery conditions will hit the area as soon as early october which will impact the testing, recovery and remediation efforts, i assume. What steps is epa taking to prepare . Were looking at two efforts. Were looking at a longrange monitoring plan that we are about to put out in draft to all of the groups that we are working with in the area, including the state and local and county officials and the tribes. Well hopefully get some longrange monitoring plan agreed to that will consider the challenges that were facing with the winter months coming up. Can you guarantee that you wont abandon the site during the winter . We will not abandon the site. The second thing were doing is taking a look at whether we need to enhance the treatment process right at the site. Now, thats not the full remediation that the upper animas needs, but were looking at that issue in collaboration with the state and local communities and the tribes as well. How many other sites similar to the gold king is epa currently working at or involved with right now . Well, it depends on well, first of all, i have actually issued a memo holding off on continued work on similar sites until we see what went wrong. What are we going to see from the independent from this site . From this site. So we can learn those lessons and ensure is doesnt happen again. My understanding is we have identified ten sites that we have put work on hold that seems similar enough that we want to just monitor that situation as long as there isnt an imminent hazard. Were waiting on that october review to take a look at it. Isnt it true that the contractor whose work caused or contributed to the disaster is still working at the gold king site . Thats true, sir. Do you think the contractor that played such a huge role in this disaster should be working at the site . Well, i think one of the challenges that we face is that our onscene coordinator was at the site and overseeing that work. The contractor, as far as my understanding, was doing the work dictated under the work plan. They are a very experienced contractor. We have no information that says that they had done anything wrong. We certainly know that the work just the yellow plume. Well, that was a result of obviously actions that we took. It was unanticipated. It was a decision we made with mining officials, ourselves and the states and others. But we need to look at what went wrong, but they are actually actively working were they given a 500,000 additional, i guess you wouldnt call it a bonus, but 500,000 additional to clean up the mess they made . I am not aware of what sums are, if youre referring to the fact that they were the first onsite and the most able to contain the spill and to construct the Treatment Facilities right at the spill location and to contain it, they were there. They helped to do that. What that accounted for in terms of time and money, i dont know. Well, i appreciate you checking into that. It seems to be indicated that this company, this contractor that was highly responsible for the disaster, they were there, and they were able to be there as quickly because they were they were the ones that were doing it and caused this spill to take place. But appears that they received an additional 500,000 on top of their contract to now do the cleanup for the mess that they made. That, to me, doesnt sound appropriate. Sir, i am happy to provide you the information on what other compensation may have been given to this contractor. I also want to reiterate that epa is the one that is taking full responsibility for this. And d. O. I. Will tell us whether mistakes were made at the site or whether there was any misjudgment on work that we didnt do in terms of due diligence. Let me get to that. I appreciate that youve said that numerous times. Sorry. We appreciate any entity that says the buck does stop here. Tell the committee in what ways epa failed and bears the blame in this case. Were going to wait for the d. O. I. Review to tell us that. What do you think . We can read reports. Yeah. What do you think . There are certainly already Lessons Learned. I think we were as good as we should be on notification . No. I realize we had three different regional offices involved. We had 120 miles to account for before it even hit the Navajo Nation lands. We should have been more on top of that and we should be looking at that. Thats why weve already demanded that those actions take. Did we work effectively to get our response actions up . I think our response actions have been good. Can they always improve . Well look at ways in which we can do that. So were trying to get the Lessons Learned here. One of the big open questions i think youve raised in this committee and i am sure well talk about again is how did the spill happen . Did we look at this in a way that wasnt due diligent enough . Did we have the right people looking at i think that goes back to the contract. Thank the gentleman. Time has expired. Now recognize the gentleman from massachusetts, mr. Lynch, for five minutes. Thank you, mr. Chairman. Ms. Mccarthy, normally when i see an old friend at a wake or funeral i say its good to see you, just sorry to see you under these circumstances. It is good to see you. Does it feel like that to you too . Yeah. Well, you know, i i love my epa in my region. I have to sayus just thank you. I want to say some good things here. Very responsive and very conscientious. And i appreciate the work that they do. But this is not the epas finest hour. I think you would admit that. And i actually have a connection to this whole incident. I used to live in farmington, new mexico. I was there and lived on the navajo reservation. I was a guest of the Navajo Nation for a couple of years. I know how the tribe is intensely invested, not only financially, but spiritually in their land. Yes. And i was honored to be their guest for a couple of years. What troubles me here is that, you know, we often see how the epa works. Theyve got an almost maddening hypertechnical Compliance Regime for businesses. That is often the case. And yet, in this case, internally, it seems that the epa abandoned all that hypertechnical compliance in its own application of its actions. What are we going to do . What are we going to do here to help the navajo recover here . What are we going to do to get this straightened out and cleaned up . Can we get a promise from you that you are all in on this and that you are going to be as relentless in cleaning up this this spill and this accident as you have been in some cases where you come down on some industries that were all aware of that found themselves in a similar situation. We need that type of guarantee. We need you to be all in on this. We need you to be relentless, relentless, in terms of fixing your mistake, what happened here. I mean, albeit i know there were good intentions here. Good lord, this is a beautiful area, and now its damaged extensively, and we need your help to set this thing right. Well, i think you know from my my forthrightness about taking responsibility for this that we are all in. It is extremely difficult and upsetting for the navajo. No question about it. I recognize that. Were working to try to figure out what we can do together to resolve the circumstances here, but i know that its going to take a really long time. And this is not epas best what word did you say . Finest hour. I am here to tell you that we are taking responsibility, and we will do that in the long term, and we will find a way to get to the animas river in the san juan in a way that takes care of the underlying fundamental challenge we have here. But i want to say that this was not a compliance issue. This was a response action to deal with basically contamination that epa wasnt the responsible party for. But am i excusing our role in this . Did our actions actually contribute to this . If we did anything wrong, we will be fully accountable for that. But in the meantime we have to make good to the navajo, to the southern ute, to the ute mountain and the states involved in this. No question about it. As i said before, there is a spiritual not almost spiritual, there is a spiritual dimension to this for the navajo and the ute as well. I lived not too far from ship rock. And there is like i say, there is an intense investment here on the part of these tribes. This is their homeland, you know. Sometimes we forget that they are a sovereign nation. We have a huge responsibility here to fix what we have exacerbated. Maybe we didnt create it, but we certainly exacerbated the problem here, and we need to step up in a big way and meet our obligations. Mr. Chairman, i yield back. I thank the gentleman. Now recognize the gentleman from california, mr. Mcclintock for five minutes. Ms. Mccarthy, the epa posted videos to its website taken by onsite contractors at the spill emerging out of the mine as it happened. I think we saw a clip of that earlier. On september 9th epa assistant administrator testified before the House Science Committee on these videos. I think we have a clip of that testimony. Show the blowout as it happens. According to the website i want you to look on the far righthand side there, epa removed profanity contained in the audio of the videos and obscured visible license plates for privacy purposes and then it ends with this. Epa did not edit the videos in any other way. So first question for you, is the statement i just read from epas website accurate . It is accurate. Great. Do you have any reason to believe that it would not be accurate . I do not. Okay. Here is video footage of the early stages of the Gold King Mine blowout that was obtained by the science impcommittee. Really high. Is it going to close it out . What do we do now . Well, the next video is the exact same footage that epa posted on its website, but the last few seconds of the audio has been removed to prevent the viewers from hearing the team on the ground saying, what do we do now . Lets have the second video. Is it active . Huh . Is it active . Its high. Getting really high. Is it going to close it out . [ beep ] im going to ask that we stop it here. Obviously the tape was heavily edited. You said that you obviously the tape was heavily edited. This was a week ago when you were when your agency was giving misinformation to the congress. You have had a week. And i am going to ask you again, is this editing and concealing of videos epas idea of accountability and transparency . No. That originally posted video should not have been redacted. We posted the unredacted version. You understand the concern here. One is the fundamental competence of the epa. I think that speaks for itself in this incident. The other is the double standard that seems to be at work here. You testified earlier in this hearing that youre not required to consult with the National Fish and Wildlife Service because you didnt intend to cause the spill. The chairman pointed out, there was a company that accidentally spilled 7500 gallons. Onefourth of 1 of what the epa spilled. You went after those people viciously and got six criminal indictments. Youre sending people to jail over that. Some other poor guy in alaska operating a backhoe accidentally causes a 1500gallon spill. 5 100ths of the spill of epa. You sent him to prison. No criminal charges are being filed against epa officials, are there . Well, i think that were waiting for the department of the interior to actually produce their report. If they identify criminal or administrative concerns you understand skept skepticism. You say you are going to take full responsibility. Does that mean that you are resigning if. No, sir. It have you asked any of your subordinates to resign . No, sir. Have you docked anybodys pay . No, sir. Have you yelled at anybody . Well, maybe. Sir, i am taking accountability for the spill and issues around that. But we are working as closely as we can to independently get this looked at, and we will be Holding People fully accountable there was a blog entry reporting on this pointing out that after the initial spill things went from bad to worse for those relying on the river, for example, navajo farmers unable to use water from the river were provided with water resovrs from the epa. This was contaminated too prompting another coverup. The individual reporting the contamination was unstable and deliberately, quote, agitating in an attempt to undermine the agency. The navajo leader took the epa at its word until he observed the pollution for himself. Is this true . What i understand is that the tanks were tested by the navajo and found to be clean. It was Drinking Water put into fully cleaned tanks. Thats my understanding the situation. There was definitely concern. Do i think the level of mistrust contributed to that and do i understand why . Given epas responsibility here . I absolutely do. It is going to take a long time, i think, before anybody begins at least in the navajo, to be able to trust our relationship again. Do i regret that . But i am working with them. If they want thirdparty review of everything we do, were trying to identify how we do this. We will rebuild this trust. But damage has been done beyond what happened to that river, and its going to take a long time to repair that, but i am going to do the best i can to make sure that happens. Thank the gentleman. Now recognize the gentleman from california, mr. Lohne thaul for five minutes. Thank you for holding this hearing. Thank you administrator mccarthy for coming, for being so forthright, for not trying to duck tough issues and for being accountable. I think that we still have to go back to some of the points that were made before, that the Gold King Mine spill tragedy reminds the nation of the reality and that we have, quotes, a creeping killer in the shadows. There are up to half a million abandoned mines nationwide. Many of these mines are dangerous. Theyre discharging toxic, acidic mine waste into our surface waters. And if we dont do anything to properly clean them up and close them down, we will have more disasters. Thats it. I mean, i think thats what ive learned after being here. So i am very sorry it took this tragedy and im sorry for some of the actions that have been taken, but i am really glad that were focusing our attention on what is frequently ignored or forgotten. And that to help address this problem thats been of abandoned mines, i point out again that Ranking Member grahalva, many colleagues and myself have introduced legislation that would secure funding to clean up and properly close down these dangerous mines. Hr 963, the hardrock mining reform and reclamation act, would also provide assistance to mining communities and ensure a fair return to taxpayers for extracting public minerals. I would like to urge all my colleagues here today to become cosponsors of this important legislation and help us to prevent the next abandoned mine contamination release before it happens. Now, administrator mccarthy, these may seem like obvious questions. I have some. Some have already been gone over, but i would like to get them on the record. The epa, as i understand, was partnering with the state of colorado on the Gold King Mine project. Is that correct . Yes, sir. We were cooperating with them, yes. And coordinating our efforts. And why was the epa and kld working wi colorado working with the state on the gold king and other mines in the area. The degradation in the Water Quality that was being contributed to by the mines in the upper animas as well as the threat of a blowout at the mine which was a very big concern. How did that happen . Why are we in this situation . Its a long history, but those mines have really not been actively worked since 1991. Since that time there has been a buildup of water in the system. Some of the mines in the area have been plugged, which shift the hydrology, which create a backup, and it is in the Gold King Mine itself, it had some collapses in the mine, with i made it inaccessible. We were trying to get a handle on a situation that was growing increasingly dangerous. A question again to me is to clear up why were the original mining operators, why did they not clean up this, and who will be paying now for this cleanup . My understanding is that for the most part they are not obligated to and what we use in terms of our resources are taxpayer dollars. Theyre given to us, appropriated by congress. So its the so its the taxpayers that will be paying for this, and not only this, as we look into the future, we have you already stated we have incomplete data as to where abandoned mines are, what toxins theyredo÷ releasing into our waterways, and we are currently unable to adequately pay for the cleanup of these abandoned mines. So if it seems to me, if we take a larger view of the Gold King Mine disaster and we move forward with legislation, that Something Like the hardrock mining reform and reclamation act would provide the funding for cleaning up these abandoned mine sites, is that not so, that Something Like this would be appropriate. It would certainly help, sir. Thank you. I yield back. Recognize the gentle woman from wyoming for five minutes. Thank you, director mccarthy, for being here. Let me set up a scenario. There are a number of years ago there was a Water Treatment plant that was actually downstream that was treating the water from this mine. About ten years ago there was a storm. It was damaged. It needed to be replaced. A decision was made not to replace it, not to treat the water that was coming down. Next, epa and the state of colorado created a plan to clean up the mine rather than just treat the water going downstream. So, they block off the flow of water from drain pipes in the mine. When you plug the, the water built up into a huge wall of water in the mine. And that was a significant cause of the blowout last month. So rather than replace the Treatment Plant downstream that was providing cleanedup water to the utes and the navajos, the decision was made, no, lets not treat it. Lets block the drains, store the water in the mine, and when it built up, it spilled out. It goes downstream. Then bureau of reclamation dumps a ton of water downstream that should have been available to the tribes to irrigate with and to keep water flow such that endangered species can remain viable. To me this looks like a chain of events that was foreseeable and avoidable. Now, it was the Gold King Mines owner that asserted that the buildup of water in the mine, when you plug the drains, was a contributor to the blowout. Do you have any reason to disagree with that . I have i have a slightly different understanding of the history here and the issues, so i dont want to pick apart the issue, but i do think we need to have a conversation about it because i dont i dont quite see the same history here. But i do know theres been many decisions. I want you to understand epas role here was we did not participate in decisions about who was responsible for what, where blockages should be approved or not approved, or what to do with the Treatment Facility that you identified. We came in simply trying to work with the state and the local stakeholders to identify what we could do to alleviate problems along the way. Okay. So now that we know that the southern ute tribe has already spent at least 170,000 responding to the spill yes. Whos going to reimburse them . Actually, theres two processes here. And the reimbursement process is handled under circla. Basically its a memoranda of agreement we need to reach. I was checking to see that thats been done with the responsible parties helping us, and that is a routine reimbursement process that well be able to take hereof. Those relationships with both the tribes and the states are fairly routine because they act as Emergency Responders with us. The southern utes have been incredible and actually incredibly diligent and being embedded in our command center, working on this, their professionalism has been wonderful. So we are going to make sure that they are properly reimbursed for their expenses. The second process are the claims process, which is not really a reimbursement issue. Its what damages have occurred, and we use the federal claims tort act in order to process those claims. Now, will the how does the federal tort claims act help the navajo . They lost a huge amount of irrigating water, which can have longterm devastating effects if drought continues, and they dont have the water now or in the future. What how can they be made whole . Right. Two things that are happening here as well. One is that we are talking to the navajo about how they get reimbursed for the work that they have done. It has been extensive as well. And so we need to work with the president as well as the Navajo Nation epa to reimburse for their expenses. The second issue also is the claims process, if individuals want to participate in that process as well. I think i want to make sure that were all aware that the reimbursement process is quite different. Its quite while its costly, its easy to do. We have processes in place for that. The third issue is that we are developing a longterm monitoring plan. And we need to make sure that that plan allows engagement of the tribes in the states and the counties in that effort, and we need to have a stream of funding to support that effort as well. My time has expired, but mr. Chairman, mighty ask that i have an opportunity to meet with you, director mccarthy, about my what you and i perceive as a different sure. Scenario with regard to the cause and effect, the chain of events that led to this . I will have my staff work with you beforehand. I thank the gentle woman. I now recognize the gentleman from virginia, mr. Byer, for five minutes. Thank you, mr. Chairman. Id like to thank you for sitting here patiently, capably answering all of these questions. Im just and id also like to thank representative lamas for raising the whole issue of the bullworks and changing the hi hydrology. When the bullworks went into a consent degree, and theres problems still out there. Im just amazed that all of these people, all of this attention to attack the epa over a completely accidental release of 3 million gallons of mine wastewater when 330 million gallons of acid river drainage are flowing into cement creek and animus river every year. 3 million gallons on august 5th and the same water sieve gets 3 million gallons every three or four days. Weve heard today theres at least 161,000 hard rock abandoned mines around the country. U. S. Forest Service Estimates 5,000 to 10,000 miles of rivers and streams contaminated with acid mine drainage just from hard rock abandoned mine lands located on usfs lands. It seems to me the huge elephant in this room is all of the water drainage not the relatively small spill of only 3 million gallons on august 5th, the chairman said this is one of the worst spills weve ever had. Im not sure the facts support that claim. 1975, 50,000 tons of tailings poured into the animus river, turning the river the color of aluminum paint. In 78, 500 million gallons into the animus, thats 167 times what went in on that one day. And those are just the animus river, just spills all over the country. So we keep coming back to accountability. And id like to look at process what was the process by which this decision was made. In the testimony before, we hear about the epa in the state of colorado meeting with the animus river stakeholders group, and august 4th, they began excavation above where water was seeping in. What comes back again and again with the Colorado Division of reclamation of mine and safety, the epa and the contractor is that the mistake was that someone determined that the added had low or no pressure. Yes. Or, quote, the underestimation of the water pressure in the Gold King Mine workings is believed to be the most significant factor relating to that blowout. Is it going to be possible to identify the person or group of people who made that faulty determination . And should they, then, be fired or their pay docked or yelled at or because that was yeah. The heart of the matter. The heart that was one of the key findings of our internal review, and im sure thats one of the key areas in which the department of the interior are going to look. What we do know is that same review identified the factors that they considered to make a judgment. And when i say they, it was both, you know, the Colorado Division of reclamations and mines and safety was with us making those determinations on the site. And they were looking at factors that they could see to see whether or not there was pressure buildup at the Gold King Mine based on that day and that evaluation. They made a judgment that turned out to be wrong. Whether or not they did do diligence in making that or missed factors that they should have looked at, thats what the department of the interior is hopefully going to be able to advise us. And we will follow up, and they will be held accountable if there were mistakes made, if they could have avoided this. If they forgot to look at something or made a judgment that wasnt based on profound and good engineering and science. Thank you. I read president of Navajo Nations long and very detailed testimony to be offered later. And im sure you have, too, madam. Is there and obviously, he points out not concerns about the 3 million gallons, about everything thats coming in the years to come and how the epa will deal with that. What the Navajo Nation as farmers and as people will need. Is there any reason to think that the august 5th spill was anything more than the trigger for all of this attention and partnership between the epa and the Navajo Nation . I think it was you know, it has raised visibility of these issues in a way that im hoping something good can come out of this so that well be better off in terms of how we manage these sites moving forward. But weve been working with the navajo for years, and we will continue to do that. And we will address the concerns that theyve identified as best we can. Because even before the august 5th spill, most of these things were just as relevant for their farmers, for their water supply, for the spirituality of their land. We now know that the water is now at preevent conditions. But that doesnt mean that the animus and the san juan are at a point where they need to be in terms of their Water Quality and the protection of the sediment so that were not experiencing this fluctuations that were seeing now. I thank the gentleman for his time. Time has expired. We now recognize the gentleman from south carolina, mr. Duncan, for five minutes. Thank you, mr. Chairman. First off i think theres a clear double standard of how epa places itself with regard to how you place private enterprises with regard to this. The gentleman from arizona has been a leader on this issue for Natural Resources committee. Id like to yield the balance of my time to him. Ms. Mccarthy, in yesterdays hearing in front of the Senate Environment public works committee, when asked whether the government should be held to the same standards as it requires of the public and the private sector, you stated that and i quote actually, a higher standard would be quite appropriate. Do you still believe today that a higher standard for government would be quite appropriate . I do. Thank you. We have a public responsibility thats larger than what i think the private sector has, yes. So i would like to highlight and submit for the congressional record a wall street journal article from september 9th written by a former epa employee. In the article, bill wyram states, and i quote, a facility in charleston, West Virginia, that has been previously brought up accidentally spilled roughly 7500 gallons of toxic chemicals into the local waterway. The epas recent discharge of toxic water was many times larger. Yet the agency went after the company with everything it had. End quote. Should the department of justice or an independent investigator go after the epa with everything it has . When we get the final report to understand what happened, i would expect d. O. J. To Pay Attention to that, and i will Pay Attention to it as well. And would the Inspector Generals be involved in that . The Inspector General is also looking i appreciate it. Into it and doing an independent review. He also references an incident that occurred during the Clinton Administration where a Railroad Supervisor contractor who accidentally struck a pipeline with a backhoe and contaminated about 1500 gallons of river water. Though the supervisor was off duty at the time of the incident and had subcontracted the work, the epa pursued criminal charges against him. And he was sentenced to six months in prison because he was ultimately responsible for the safety on the site. You have said that the epa and you are ultimately responsible for this spill, and you take personal responsibility of this incident. Correct . So the only correction i would make is the department of justice is the one that pursues criminal actions, yes. Okay. Since you believe in parity and a higher standard for government, someone should, from the epa, go to jail for this incident, then . Im not i am not at all aware that there is negligence or that we didnt do due diligence, and those are the things that the department of the interior would indicate. I would beg to differ. I mean, we knew that there was a problem in here, and we should have alerted everybody alodng these lines, and i think the chairman of the committee from that standpoint. What actions would the epa take against a private company who was responsible for a spill of this magnitude . We actually would be doing exactly the same thing with that company at this stage and looking to independently identify whether or not there was any negligent or criminal activity that led to this. Thats exactly the same process were going through today. Okay. Now, when the spill was reported to the National Response center at 12 27 on august 5th, the caller repeatedly emphasized how important it was to notify downstream users who would be affected by the contaminated plume headed toward them. The message was relayed to the epa. Why is it that the state of new mexico, the southern ute tribe and the Navajo Nation all found out about this spill from sources, not the epa, who caused the incidents in the first place . It was part of our contingency plan that we always use to take local information so that there is appropriate notification. Whether or not it was as quick as it could be, i dont know, but that was an appropriate way in which to notify. Well, so you were notified, how hard would it be to pick up a phone . Well, we have a whole stream. Its not just individually deciding who to call. There is a contingency plan for notification thats developed with the states, with the local communities, and thats what we initiate. This is not done on the fly. This is a plan that was developed with everybodys input. Obviously as a ceo, it failed. It failed miserably. It was way delayed. You have representatives that will testify according to that, the Navajo Nation, the utes. I want to first move forward a little bit. This lack of trust thats now being instilled within the tribes, how can you expect states and tribes to have trust and faith in your agency to clean up this mess . If they cant rely simply on being informed while its going on. You talked about collaboration, but it shows a very poor respect. And i want to ask one more question before you answer because im running out of time. Why is it so difficult i know the southern utes were on there for tribes in the states to have seats at the table at the epas incident command center, having open lines of communication or get questions answered about health and sediment impacts . Because i know they are. I look over at the president of the Navajo Nation. This could have been dramatically averted. So i want to know why theres so much reluck tansy in those applications. Actually, there is no reluctance to have the tribes involved to the extent that they want to. They actually were involved in our incident command center. The southern utes were there and emb embedded. And the navajo . We have 11 people embedded in their command center and other activities on the tribe. Something seriously went wrong in this application. And as the ceo, i hope that you would review that. Thank you. Thank you, sir. All right. Were now under resource rules which means weve got a second panel thats been sitting for two hours waiting to be heard. Were going to move this as quickly through, which means your five minutes, im going to gavel you down at the end of it. For your answers. If it comes in five minutes, youre in the middle of a sentence, im going to stop you. For the rest of the members, dont wait until theres ten seconds left before you ask her a question. Give her a fair chance to do this. But we are going to keep the fiveminute rule and get along so we can get the other panel in here. Norton, you are up next for five minutes. Thank you, mr. Chairman. Actually, im i can see something beneficial that came out of this tragic accident. Of course, youve taken responsibility. I congratulate you on the rapid cleanup. It shouldnt have happened in the first place. But the benefit that has come is that its focused on mine leaking, and id ask the chairman to put into the record an editorial from the Salt Lake Tribune entitled editorial chaefetz owe us. Perhaps its a model for what ought to happen here. I understand that there may be as many that while theres no federal government data, there may be as many as 500,000 abandoned mines. Are they orphans out there . Nobody takes sporesponsibility them, the state, the government, nobody . Is that the case . The state and federal government does the best they can, but even we dont know where many of these lines are located. This was in colorado. I note that in colorado, there are three mines listed on something called the National Priorities list. Yes. Does this mean that those mines pose a risk as we speak for leakage . The reason its on the National Priorities list, which you might think of as a superfund list, is that and i dont understand why this isnt covered by the superfund. Well, there has been discussion about whether it should be on the National Priorities list. President begay has written to me, and ill take that letter very seriously. There have been discussions, but up until 2005, there was a Good Opportunity to clean this up, and it was going in the right direction. Ms. Mccarthy, i need to know whether this acid mine, pollution, with this half a million or so mines poses any danger to Drinking Water or to fish and other wildlife. I would have to say throughout the country, there are many instances in which were looking at sites on the National Priorities list which do pose significant hazard, yes. Including Drinking Water. We could have some of this leakage into the Drinking Water of the American People. That is a continual threat from our many of but we dont have any way of knowing that until its there . Well, on the National Priority list, epa is responsible for monitoring those sites and for taking action if the responsible party isnt. And so we are monitoring those. The concern, i think i have more is after you monitor it, can you then alert or make somebody do something about it . Yes. And who does something about it . Either the responsible party or epa. Or epa. Thats correct. But we only have a small fraction of the mines on the National Priority list. What do you do to get on that list . It has to be called to our attention. We have to do a site assessment. We have to consult and confer with the governor in the site or the leadership in the tribes in order to have it on the National Priority list. And we have to make a decision that is very process oriented and public to get that on a site and to allow us to then spend federal and state dollars on a more full and rich cleanup. Well, i see the ball is in our court on that. Thank you very much, mr. Chairman. Thank you. I will now turn to mr. Meadows. Thank you, mr. Chairman. Ms. Mccarthy, good to see you again. You, too. If you would, clear up something for me. Chairman bishop, when he asked you about why you didnt notify the fish and wildlife, your testimony was that you didnt anticipate a discharge. And so there was no notification. Then upon further questioning from mr. Fleming about an unrelated, you said that a discharge was imminent, that you believed that it was going to happen. So which is it . Your testimony to mr. Bishop or your testimony to mr. Fleming . Because they seem to conflict. Well, let me try to be a little clearer. I apologize if i havent been. We were there because concern was raised that there was pressurized water in the mine and that it might result in a blowout. That is the reason we were doing the work was try to alleviate that pressure. The actions we were taking were certainly not intended to cause the blowout and the actual professional opinion of those on the site was that that would not happen. All right. So let me go a little bit further, then. Because any time you do any kind of work, theres a plan. There is. And so who approved the plan . Epa. Dont you approve the plans . Essentially. Okay. Im troubled because i looked at that video, and very familiar with 402 permits, a number of ive been there, done that. Yes. And there was no it doesnt even seem like you followed your own guidelines that would be applied to the private sector. I didnt see any of those there, so did you intentionally avoid your own guidelines . There were plans. There was a plan. It was developed by did you follow 402 general guidelines . We actually, i believe, followed all permits. But what now, i didnt ask i said 402 guidelines. Thats a specific question. We did because we were actually not so where was the retention where was all there was actually a retention pond that was constructed. So the retention poppnd was behind the truck . Because i saw the video. It started flowing to the truck. Wheres the retention pond . The retention pond was constructed in a way that would have managed the anticipated release. That was our anticipated release we were trying to generate in order to relieve the pressure. Because it was a blowout, that treatment pond was clearly inundated very quickly. Yeah, but ms. Mccarthy, listen. Youre talking to somebody whos done this. Normally what you have are multiple retention ponds in case of a blowout. I know that ive had ive had to construct them. And so you anticipate worstcase scenarios. And it doesnt look like you anticipated worstcase scenarios. It looked like you kind of cut some corners to try to get it done, and you had a trackhoe there working on it. This is one of the issues that the internal review raised as to whether or not the emergency plan was adequate. Well, whats your opinion on that . Was it adequate . Your opinion. Im not asking well was it adequate . The internal review clearly pointed out that it wasnt. What they saw was not adequate. Okay. What they saw. I do not know what else is there, but i honestly think we have to look at the department of the interior. Okay. Why do we have to look at the department of interior . You keep coming back to that as this independent thats right. Agency. Yes. Well, its part of the administration, so i hardly see the doi being independent necessarily the way that we would think of independent, so why not the Inspector General . The Inspector General is looking at this issue. But why wouldnt they have the main authority . The Inspector General for the epa . Theyre going to be looking at this but why wouldnt they have the main authority . We are going with thepg agencies that have significant expertise. Its the department of the interior, the army corps. One of the things we did was to make sure that we werent defining the scope of work. Did you decide whos going to be independent . No, i left that up to staff to look staff and others. But your agency decided who was going to be independent . We actually consulted with a number of agencies. Those agencies agreed to do it. They have so can you get those documents to the committee in terms of those inquiries that were made in terms of who would be best . Because obviously if you made multiple inquiries, you have data and emails to back that up. I certainly can see what we have available if thats the request. But we did try to get we did try to get authorities to actually look at this that would have the expertise to be able to do an independent review. If you would get that to committee, mr. Chairman, i yield back. Thank you. Under five minutes. Well done. Mr. Lamborn. Thank you mr. Chairman and for both of the chairmen, thank you for having this hearing. Ms. Mccarthy, its probably no secret to you that tens of millions of americans fear the epa, despise it and even hate it. Many of them are in my district. One of the reasons Many Americans feel this way is the highhanded and arrogant way that the epa operates. It is constantly moving the goalposts of environmental standards. And many, in not all of these cases, the existing standards are already quite stringent and have been complied with at great expense on the part of taxpayers or the private sector. To ignore the High Economic cost of further tightening of standards shows a disregard for the difficulties that Many American many Everyday Americans face in putting food on the table without having to pay higher prices for energy or losing jobs because of the higher costs of regulation to business. So my state of colorado, for instance, is currently being forced to sue the epa to avoid the illconsidered clean energy plan. Which has an extremely high cost for little or no environmental benefit. Now, the arrogance of the epa is seen by its reaction in if the aftermath of the horrible environmental disaster in colorado that were here to discuss and investigate today. No one has been punished. And the epa is seeking to avoid any hit on its budget for judgments against it resulting from this disaster. It wants other parts of the federal government to pay any judgments. So this, to me, mccarthy, is a double standard because had the private sector caused the environmental tragedy in colorado, there would be serious fines and possible criminal penalties. So this brings me to my first question. In light of the perceived double standard that the epa operates under where the private sector is not allowed to use its own science and come to its own conclusions, unquestioned, would you support legislation by congress that would require the epa to disclose to the American People online whatever science it uses to form its judgments . Sir, im not prepared to talk in big picture about what we would support or not support. I am here to tell you that we have taken full responsibility for this issue. We are treating us the same way we would be treating the private sector. And while you are absolutely right, we enforce our statutes, thats what brings the Public Health and environmental protections and benefits that people rely on in this country. And i believe they will continue to rely on our ability to deliver those. A private company would have to absorb a fine assessed by the epa from its budget. And youre seeking to have yeah. Not in this consequence. This was actually a response action to try to mitigate a danger that was pointed out to us and the challenge for the private sector would be the same as us. Make sure that if an accident happened at that site, that they get people out and keep them safe, that they reduce the spill quickly, and they take a count and accountability for all of the damage that it caused. Thats exactly what were doing. A private company wouldnt have been fined. If they were acting in good faith. Only if the actions they were taking were against an order or settlement or someone was found negligent or criminal in the activities. And those last two issues are what the department of the interior will help inform. If we were negligent, if we didnt do due diligence, then we will have to be held accountable for that as well. In the meantime, let me ask you this about the contractor. Yeah. Is the contractor being suspended from further work on mines until the results of the investigation come back . No, sir, because the consultant was the contractor was working under the direct supervision of our onsite coordinator. It is my understanding that at this point we dont have any reason to believe that he wasnt doing the work, that he was tasked to do. So it was the directors epa directors fault for im not sure where fault lies. Thats what the department of the interior is going to identify. The question is the key decision that was made there was the understanding, based on the site conditions, and this was the experts from us in colorado, that there was no there was low or no pressure. That was the key decision. It wasnt the fact that he did the work the way the task order indicated. It was the fact that a determination was made that proved to be incorrect. Thank you. Thank you. Mr. Hifes. Thank you, mr. Chairman. Id like to pick up where mr. Lamborn was. You just said if a private company did what they should have done, there would be no problem. What i would submit likewise is if the epa had done what it should have done, there wouldnt have been this spill. There ought to be equal consequences to the epa just as there are private citizens. And i cannot believe for one minute that the epa would not aggressively go after another group, another company, a private company who was involved in cleaning up a potential environmental hazard particularly if they did not have the experience and expertise of doing so, and they created a problem such as the epa created. You would go after them. And there would be heads rolling, so to speak. And yet that is precisely what the epa is now guilty of. And to this point, nothing at all has happened. And you said youre treating yourself, the epa, the same as you do other companies, and quite frankly, that is just not the case. Have you read the summary report of the internal review of the blowout . Yes, i have, sir. You may recall on page 2 the last sentence there, it says the team conducted a limited review of internet resources to determine if there are existing guidelines or procedures for investigating sites with similar characteristics as this site. So obviously, the epa does not have experience in cleaning up mines such as this. They had to refer to the internet, the expertise apparently is restricted to google. Is that correct . Ill have to look at the exact sentence youre reading, but the onscene coordinator has extensive mining engineering expertise. And we worked with the Colorado Division of reclamation and mining and safety who have consider expertise as well, including well, according to your that area. According to your report, the summary review, epa relied on internet resources to figure out what to do in this scenario, and thats according to what you submitted. Let me ask you this. According to the federal tort claims act, are you familiar with the discretionary function exemption . No, sir. Okay. That is a legal loophole within the law that would allow the epa to get out of having to pay for any damages. And my question to you was whether or not the epa plans to utilize that exemption. But youre saying youre not familiar with it. Im not an expert in the claims process. I apologize, if we need to answer your questions in more detail. Well, then my question to you is that is a legal loophole in the law. Will you commit to us today that the epa will not utilize that loophole and that you will pay for damages . We will work with doj to compensate as appropriate. I do not will you not utilize i cannot occur will you not utilize a legal loophole to get out of it in. I cant say that ill do something against the law. Im sorry, sir. I cant do that. No, this is in the law. I just dont want the epa utilizing a loophole to get out of what you are responsible im not going to try to get out of any of my responsibilities. Okay. Are you familiar with greensboro, georgia, in my district, there was a similar experience about six months ago where the epa likewise had a contractor that made a mistake, and they struck a water main and lead, arsenic, mercury, all sorts of things went into the oconee river and lake. I dont recall. Its another example of the epa having a similar problem. And mr. Chairman, i would like unanimous consent for this fox news report to be added. Without objection. Thank you, sir. I would just conclude because i know were in a hurry here but you have stated that you are taking full responsibility for this spill. And in light of the criminal charges, the prison sentences, the incredible fines that others have experienced for much less, and many of those examples have been brought forth today, much smaller accidents, ms. Mccarthy, in the interest of fairness to the American People who have experienced the wrath of the epa for much smaller scenarios and accidents than this, i think its only appropriate that you would resign as a statement of fairness for what other americans have experienced for much smaller incidents. Mr. Chairman, i thank you, and with that, i yield. Yields back. Thank you, mr. Chairman. I appreciate you, mr. Chairman, and chairman chafetz for allowing this hearing. Thank yo ms. Mccarthy, for making the trip today. Several things im looking at, first of all, when i look at how people have to deal with their government and the regulations is proportionality. You know, we know what accident how that is defined. Its when people when something happens, its out of their control that they didnt intend to do, that they didnt want to have happen and probably wish they could have head off somehow. That said, accidents do happen. We forgive people for accidents. Yet we see an unforgiveness attitude coming from your agency with people that havent done things intentionally. So when we talk about proportion, for example, coming back to that West Virginia mine spill where it was 7500 gallons of water that people faced criminal indictments immediately and could end up in prison, the company is out of business. But in this case here with 3 million gallons being dumped when other activities should have been taken ahead of time, thats 400 times the amount of pollutant that got out. You know, basically were talking about one company the size of a small backyard dou doughboy pool versus 400 of those types of pools. So the proportion for the criminal charges for them versus what has been brought upon either your contractor or the people in your organization, do we expect we should have a 400 multiplier for prison time being charged against some of your employees or contractor . So the West Virginia spill ended up actually contaminating Drinking Water supplies for many people. It caused significant concern, and about it was done by a company that wasnt following the law in their requirements. Thats why that was pursued. In this instance, i am not saying that that 3 million gallon spill did no damage. Clearly youll hear that damage happened. Whether or not it was physical or not. But the difference here is that when there is an accident, you have to determine whether somebody was doing the things they should have been doing, and an accident occurred that they couldnt have anticipated or whether there is fault and blame. Thats what were trying to determine with the independent review, and we will follow wherever that goes. In the case of your organization once again, a question earlier was posed, if you have a project in anticipation of a possible blowout, which you admit to in your documents, that it was very, very possible of a blowout, that you should have been notified of fish and wildli wildlife. There was, that was a violation of the law. So should this committee, should this house, should somebody be coming down hard on your agency and your people for violating the law and not having that notification, but even more so, some of the other measures that could have been taken. You called this this is a pressure situation in that mine. So should hydrostatic testing have been made which is referred to in documents because theres acknowledgment in some of your documents that testing should have been done ahead of time, but it was seen as technically challenging or maybe costly. Now in the end game, this is much more costly and brings much more embarrassment upon your agency and much damage to the tribes now and many people downstream as well as Drinking Water like you mentioned a minute ago. So how much should we come after you for not following the law and notifying fish and wildlife but as well as not even following what your own documents show that you should have had hydra static testing as well as the possibility of putting a relief pipeline, drilling that in place, to relieve the pressure . How hard should we come down on you for this . I do not believe that the agency violated the endangered species act. And we can continue to look at that and talk. The more important thing is, youre absolutely right, if we did something wrong, then you should come after us. And frankly, im going to take full accountability for that as well. Again, back to proportionality, my constituents in my rural district face a lot of issues from federal agencies coming after them. Somebody trying to change their cropland from grazing or a wheat field to, say, an orchard field. They have to prepare the soil differently. They could have somebody on their case over their Soil Preparation with large, large fines. It indeed has happened. Does that seem fair, especially when the people involved have if theres a period which they would make an application and they dont hear back from the federal agency under the law, it says they can then proceed and then they come back after that, say, 90day period . Does that seem fair that they believe theyre operating in the law and then they come down upon them . Sir, i cant speak to any particular instance that im aware of, but i well, under the laws of the united states, our folks are really, really that iing a hit on that. I thank you. Sorry. Thank you, sir. Follow the law. Mr. Palmer. Thank you, mr. Chairman. Ms. Mccarthy, thanks for coming again today. Five months ago the epa sent toxic sediment into a creek in greensboro, georgia. Initially epa denied having anything to do with the project, then later admitted that it funded the cleanup and the Development Operation that triggered the spill. Did you request the department of interior review for that spill . Im not directly aware of it, sir, so i will have to get back to you. All right. The record indicates that you didnt. And it makes me wonder why after an accident like that that you didnt stop all of these cleanup efforts, and particularly with the Gold King Mine, after having a spill in georgia just a few months ago. Let me ask you, youve been asked several times if anyone at epa is going to lose their job over this incident. Has anyone at the Environmental Restoration llc been fired or disciplined over this . And i think you may have answered that. Not that im aware of. Am i correct and you responded earlier that youre continuing to use them as a contractor . That is correct. Also, are you aware that it was reported that epa collected about 15,000 tons of poisonous waste from two lead mines in 2005 and dumped them down the shaft of the new macato mine without notifying the mine owner who happens to be mr. Hennis who owns the Gold King Mine and that the epa did not take responsibility for that and did not assist or pay for the cleanup. Im not aware of that incident, sir. I think you need to look into that as well. One of the things that really concerns me about this and i realize the epa has a job to do, but i brought this to your attention before about some of the heavyhanded tactics that epa engages in. And chairman bishop earlier in his questions talked about the fact that the epa has clearly violated federal law, that it doesnt matter that the epa didnt realize that they violated the law or that the epa didnt intend to violate the law or that the epa was just trying to do its job when it violated the law. That doesnt matter. And im saying it doesnt matter in the context of how youve treated other folks. I think mr. Gosar brought up the case of edward hanicek. He was sentenced six months in prison. He was convicted despite the fact he was off duty and not present when the accident occurred. Lois alt of West Virginia, shes a poultry farmer. The epa spotted some feathers and droppings near her chicken houses. Now, having grown up on a farm, im fairly familiar with that. I think most people who have been around chicken farms would expect to see that. But they told her that she had to get a National Pollution discharge elimination system permit, or shed be fined 37,500 a day. Ms. Alt, true to her native West Virginia spirit, is fighting it. Andy johnson from wyoming has been mentioned. Mr. Johnson built a stock pond for his horses and cattle on his eightacre property. A stock pond that a former army corps of engineers enforcement officer inspected and concluded that it provided environmental benefits including approved Wildlife Habitat and that the water flowing out of the pond is three times cleaner than the water flowing into it. Yet mr. Johnson has been fined 16 million. Now, this is just a small farmer. Then youve got the situation with the range Resources Corporation in texas, a natural gas company, being forced to spend 4. 2 million defending itself in 2011 after the epa issued an emergency order. Epa accused the range resources of causing or contributing to the contamination of two water wells. And then when it was quickly determined that they didnt have anything to do with it, despite the incontrovertible evidence to this fact, the epa claimed that it was not required to prove or even allege any connection between the con tam thagtaminat. You were going to continue along that course until you finally relented and gave that up. You also turned over the personal data of 80,000 farmers to environmental groups. I dont understand why you can come before this committee and sit there and say that youre sorry for what youve done in the context of how youve treated private companies. You really ought to be sorry. Mr. Chairman, i yield. Thank you. Mr. Westerman. Thank you, mr. Chairman. Despite efforts to try to minimize the significance of this spill, the facts cant be ignored that 3 million gallons of acidic heavy metalladen water were released into the animus river, not just because of an accident, but because of mistakes made by the epa. Mistakes caused by neglect, because of a culture of arrogance where the epa assumes they can operate outside of the rules and regulations that others must adhere to. And quite simply, the epa did not have those in responsible charge with the education, professional experience, licensure and continuing education required to do this job properly to safeguard life, health and property and to promote general welfare. Administrator mccarthy, we cant put this water back in the hole, but i hope we can hold everyone accountable who negligently let it out. Along with that, i hope you will make procedural changes, taking competence out of the equation, and prevent future spills. Under current procedures and practices, i have concern in your ability to safeguard the publics interest. Administrator mccarthy, do you believe that the activities conducted at the gold king site would require Engineering Design work . Im sorry, sir, i dont know whether im qualified to answer that question, but ill certainly respond if youd like me to. Maybe i can help you out. Colorado defines the practice of engineering as a performance for others of any professional service or Creative Work requiring engineering and education, training and experience and the application of special knowledge in the mathematical and Engineering Sciences to such professional services or Creative Work including consultation, investigation, evaluation, planning, design and the observation of construction to evaluate compliance with plans and specifications in connection with the utilization of the forces, energies and materials of nature and the development, production and functioning of engineering processes, apparatus, machines, equipment, facilities, structures, buildings, works or utilities or any combination or aggregations thereof employed in or devoted to public or private enterprises or uses. Again, ill ask you, do you agree activitied conducted at the gold king site would require Engineering Design work sfwh i think i am well aware that there was a work plan that involved a significant number of significant amount of engineering, expertise. What you asked me was the exact actions at the site. Im not prepared to answer that portion of the question. So youre saying you cant you dont have the expertise to determine whether professional services were required there . But you did say in your earlier testimony that the onsite coordinator had significant mine engineering experience. And you did say that that was my understanding. That engineering expertise went into preparing this work plan. Yes, thats correct. Colorado law also further goes on to say that engineering it requires that only only a professional engineer may practice engineering and that all engineering documents, plans and reports issued in connection with Engineering Work performed must bear the seal and signature of the colorado licensed professional engineer who is then responsible charge and directly responsible for the Engineering Work. Did a professional engineer design or stamp drawings or the plan for the work being conducted at the gold king site which resulted in the blowout . Im happy to follow up on that. I cant answer that question. I would think that if an engineer did that, if you contracted those services or if you had someone on staff to do that, that you would have those documents with you and say we followed the procedures that were outlined by a competent professional in charge of this. So far, all ive heard is that you had a project coordinator overseeing work at this site. Who is this person . I dont have his individual name, sir. Do you know what their credentials are . I dont have his bio in front of me, sir, but i do know that the work plan itself wasnt developed at the site. It was developed with the state of colorado after significant public input from the animus river public input and professional expertise are not the same thing. This is a serious matter that you should have had a professional design person in charge of to stamp these plans or drawings or whatever it was that you had. I am suggesting i cant answer your question at this point, but im happy to follow up. In looking at data, you have 15,326 employees in the epa as of march 2015. In region 8, you have 642. Across the country, you only have 12 Civil Engineers on staff. You have two geologists and one Civil Engineer working in region 8. Wow. I think this is unacceptable, and i think youre at fault for not having the required Design Professional in charge of this work. See what happens when we have an engineer on the panel . Ms. Gresham, you walked in just on time. Youre recognized for five minutes. Thank you, mr. Chairman. Its nice to see you again. I realize this is a difficult hearing, administrator mccarthy, but we all want the same thing, recognize that we dont want to have these kinds of issues and mistakes going forward, everything in your power to mitigate, and quite frankly, i personally appreciate epas attitude about taking full responsibility. But for the 3 million gallons of toxic im sure that everyone has repeated this over and over again, into the animus river and surrounding area. I really want to focus my question on making sure that we are as holistic as possible about identifying just exactly what the harm is, how we identify and address that harm, and how we assess the longterm impacts. Specifically, and i hope that president begay from the Navajo Nation will forgive me for this because as he spoke in his testimony about the navajo principle of hosho, its very important, i think, not to overlook that the beauty and order and harmony of these very beautiful, pristine areas, that in the legal context, if we dont deal with actual damage and future damage and make it completely whole, then it cant be available for the kinds of both Economic Activities and personal activities that we know are critical to this entire area and region. And i know that thats going to be a complicated process to place a monetary damage from this kind of spill that are more traditional, damaged crops, suspended Outdoor Recreation and tourism. And im looking at making sure that we restore the area to its original aspect and the potential that it had prior to this spill. Can you talk to me a little bit about how youre going to identify both the longterm aspects that are yet unknown and about how youre going to encompass this hosho, if you might aspect that we are interested in getting full compensation for in this entire region for all the states that are affected . Well, theres two longterm issues that we need to address. And i know time is constrained, so ill try to keep this limited. I mean, we have a longterm responsibility to deal with the sediment issue. And thats been one of the Major Concerns of president begay and the navajo which we appreciate and others because we know that that river has not been of high Water Quality for some time. Sediment has been a concern. We have to monitor that closely. We now have a longterm concern about that that we share. And were developing a plan to do that that well get input from everybody on so that we address that. Im sorry. The second longterm issue is what happens in the upper animus . We are not close to resolving the challenges associated with the ongoing discharge which frankly dwarfs the spill we have. And we have to address that. In terms of looking at this more broadly than a technical challenge, one of the challenges that the navajo andu÷ frankly southern ute and others have expressed to us is our we have a trust responsibility with the tribes. Which make this more important. Not only more important im going to reclaim my time, administrato administrator, but also theres a culture of mistrust, not just for all trust responsibilities but a specific culture of mistrust between the epa and our nations and particularly in this case, i hope, again, i dont overstep my authority here, but particularly for the Navajo Nation. Im expecting in that plan, administrator, that you identify very specifically monetary aspects and monetary damages related to the longterm impacts. And while i completely are. That youre looking at the continuation of environmental problems, which is absolutely your job, and i want you to do that job as effectively as you can, i want everybody made whole, and im not feeling as confident about that particularly in your plan because im running out of time. Im going to need you to address how individuals process their claims, what youre going to do to make that a nonpainful process. The Unemployment Rate of the Navajo Nation is upwards of 42 . People cant wait and wade through a ter oibl burerible bu aspect to file and wait for their claims and to use all of our collective offices. I see my colleague here, congressman pierce, to try to do the appellate work that im sure will be necessary to get farrow view. And youve got just a few seconds to assure me that were going to do that. Well do the best we can. Thank you. You can still go for seven seconds if you want. Im kidding. Mr. Newhouse. Thank you, mr. Chairman. Thank you, administrator, for being here. Not at paul. All. One of the risks of being a freshman is im right down here in the line of fire with you. I had one question in light of the chairmans wanting to get to the other people who have been so patient waiting here. Certainly this is an unfortunate incident, one that we must do all we can to prevent from happening again. We need to learn from this. But also, the word accountability has been thrown around a lot this morning. Youve said as much yourself that you will follow this wherever it goes, and i appreciate that. Could you tell me, how do you define the accountability here . What would that look like in the end . Well, there will be account aebl ability in two ways, whether or not we had administration and management failures and whether we had any criminal concerns that arise out of the independent review. Those are two related but separate issues. Well, i can say, having run an agency myself in a former life, that i believe the ability of the agency and the credibility of the agency, its ability to perform its duties is truly on the line here. Its as much at risk as anything else. And so i would hope that we can take you at your word that the accountability aspect of this will be followed to wherever it goes and that we are satisfied that the people that are in charge are held accountable. I know that we have both the Inspector General who looks at these issues in the Oversight Committee and i expect well be able to walk through the accountability issues when all the facts are on the table. So could you tell me a little bit about the protocol, when the spill happened, could you talk about what the agencys first actions were, what protocols are for this kind of a spill . The ones that we expect from the agency are anybody in this situation is first and foremost to protect the folks that are on the site to make sure that there is no potential for humans to be for safety issues to arise. And then the second issue is the challenge is to minimize the spill as much as you can to get that under control. And the third is to take a look at the impacts downstream so that you can address those and mitigate those as well. And then obviously, theres a longerterm challenge of making sure that there is appropriate compensation through the claims act, and in the case of epa where we had partners working with us and states and tribes to also reimburse them for their expenses. Can you say whether or not these protocols were all followed . And were there any, just as importantly, that were for the or not followed as well as they should have been . Hindsight, i know, is 20 20. Yeah. I am not aware that we didnt follow the correct procedures. I am certainly aware that we could have done better on notification. I think we will have to learn from those lessons, and weve already started to do that. Well learn from whatever doi says about what caused the incident, what was the prip t e precipitating factors and what we need to do about it. Unfortunately sometimes you learn from some of the worst things, and this is one of them. I would agree with that. Thank you, mr. Chairman. I yield back my time. We have three other members who are not a part of our committees who are here to ask questions. Mr. Pierce, well start with you. Thank you, mr. Chairman. Thanks, administrator, for being here today. Now, we had some difference of opinion on whether or not the epa was pushing for these form 95s to be signed. The president president begays testimony says that apparently epa was trying to obtain releases from members. So since weve got a difference of opinion, would you declare here today that any of these forms filled out before today and signed may be unknowingly by members of the Navajo Nation would simply be disavowed and theyd be allowed to resubmit that paperwork . Those can be changed at any point in time. Okay. I dont know where that may have been submitted, but weve been working to explain the form and how to do that. Sounds great. Also in order to dilute down the spill, 1. 3 billion gallons of water dumped that belongs to the Navajo Nation, are you going to reimburse that . 1. 3 billion gallons of water in new mexico is a big deal. I do not know what youre referring to, im sorry, sir. Okay. I would expect, then, for you to look into that. Okay. Sure. And get back with our office, that that water was released in order to dilute water released at the dam. Yes. So now youre familiar . I didnt know what you were referring to. I am aware that that happened. Are you going to be reimbursing the tribe for that . I do not know i do not know whether that is something that theyre youre going to follow up and find out . The navajo has not raised that issue with me. We needed everybody on the same panel, evidently you made the assertion that epa helped new mexico shut off the intake for public Water Systems . I indicated that the notifications no, i didnt ask about the notification. I asked about the help. Thats what i was talking about. All right. His comment secretary flynns comment was that you werent involved at all in the decision. It was done entirely by North Carolina and we could prosecute that decision if we had everybody on the same panel together. No. So the whole idea of accountability yes. Your comments if anybody is negligent or criminal activity, different timing, oversights be dealt with . Thats part of the about how long would you think that he would be before wed know the outcome of that . How long will that investigation take . Theyre anticipating to be completed in october. Okay. So, then my point to the others who maybe distrust that youve actually followed through on that, does the name robert biel or john biel mean anything to you . It very much does, sir. Okay. So hes thrown in jail for three years for bilking taxpayers out of about 1 million minimum. Has any money been received back from him . Did you all as an agency go and claw back money that he had fraudulently filed for . We actually have, and we continue to look that. And so there were people in the agency who had to sign leave, travel, salary bonuses, all that sort of stuff, right . Im aware of that, yes. Has anybody been held accountable for that . Processes were in place, if theres additional that we need to do no, no, are any of the supervisors that signed off for him coming to work or him going someplace that he didnt actually go, traveling first class, has anybody been held accountable for that . There was a process in place. No, has anyone been held accountable for that . Are any of the management people who signed those things, knowing that he wasnt at work, or not knowing . Again, going back to this situation, that oversight would be negligence, wouldnt it, if somebody signed a leave form or signed a performance bonus when he didnt deserve it . I dont know what the exact term is, but that is an administrative responsibility. Nobody has been held accountable. So your study which you said will be complete in october will actually result in anyone doing anything having any consequence to them at all. And now you were his direct supervisor for four years. 9 through 12, three, four years, something. Yes, sir. And so again, if people have a little difficulty in believing that youre going to actually gets to skate for 20 years not showing up for work payments to him that he did not deserve and nothing has happened to you or anyone else is this thank you, mr. Chairman. Thank you. Mr. Tipton. Thank you, mr. Chairman. Mr. Miss mccarthy, you recently stated on august 13th that we are going to be fully accountable for this in a transparent way. Yes, sir. That was your quote. Just14a as a followup, we h sent a letter to you on august 15th, signed by 29 other members listing out specific questions regarding the spill. When can we expect an answer. You have yet to respond. I am sorry. When did you say you sent that . August 15th. I will doublecheck. That will be great. Mr. Wessterman, mr. Pierce, you are citing you are going to get back to the people. Sir, i havent seen it. I dont want to give you a date and then i have to explain away. If you can, get back to us on that. With we would appreciate it. In regards to trans parency, you said they were examining different sites to suffer an epa meltdown as we saw in the cole keaton mine. How is that feeding in with the transparency . Im sorry. I dont exactly know the context in which you are referring. You have identified ten pines that have the potential to have a spill. What we did, when this happened, i issued a menu to put a hiatus on all mining operations, mining recovery or cleanups that we were involved in. As a result of that, those cleanups stopped and we have identified ten that look similar. Are you revealing the locations of all these mines . See it again. Are you revealing the locations of all the mines . If folks want to have that. I think the states were revealed and they may have the location as well. In one of the mines, was the Standard Mine near Crested Butte in colorado, which is my district. Is that information correct that that is one of the suspect mines. I do not know, sir. I can go back and take a look. We would appreciate having the followup on that. What about districts . Other members on this committee. Do you feel it is going to be important to be able to reach out and give that notification in advantage of potential spill areas. The mine was raised to us rather than the other way around. We got involved, is my understanding, because there was identified to be a blowout problem. So well continue to work cooperatively. There were no secrets here. That work was being done in a very transparent and publicly accessible way. I would like to change gears a little bit here. I would like to know how many mining engineers does the epa employ. I cant answer that right now, sir. Do you know if there are any. You dont have to give me a specific number. I know we have a National Mining team that works on these issues. The team, do you have any engineers . I do not know, sir. Can you get back to us on that . Yes, sir. You decided a number of times that you work with a lot of people with a lot of expertise in this area. I think a lot of the concern we see is just given some of the protocols that you put into place when we want to juxtapose this to a private Company Meeting rigid standards that your organization puts together those standards. When you through the document two weeks ago decided there was a potential for a blowout at the mine, why was there no effort to be able to determine how much water had actually backed up, if we are talking about having the expertise . I would have to go back and identify what both colorado and epa were basing their judgments on. It was a concern of the entire community, including the river group. It was a concern. I am just starting to get to the point of pru dendency. It is your job. You are heading this up. When we are looking through your documents saying there was a potential for a blowout at the coleking mine, would it have been there to have measured how much water was behind the wall that was built up . That was one of the issues, did we take all the prudent steps we needed to. Thats what the department of inte interior is going to help us find out. You understand the position you put yourself in as being the enforcers and the experts in the field and you are saying this is a mystery. We have to look back and see what went wrong. This is my district. Ive talked to engineers, miners that work in that area. They would have not proceeded the way the epa did. Mr. Mccarthy, let me save you some time in getting back to him. According to your website, you have zero mining engineers. Our committee has more mining engineers than epa does. Mr. Hardy . Thank you, mr. Chairman. Along the same line of questioning. I would like to know how many hydrological enjen nears on your time. I do not know that answer. How about any geological engineers . I do not know that either. How do we have the expertise in hiring a contractor to do this . Why does the epa figure they have the expertise . Isnt it your responsibility to know . Not on every site. It is my responsibility to manage the agency appropriately. Did you know the epa requires that mines before they can be open, they have environmental process done. In order to do that, they have to have geological engineers and hydrological engineers and mining engineers to go along with that. Is that true . I am not that familiar with it, sir. Those are the issues. You are the head of the department. Dont you feel thats your responsibility to know . Again, it is my responsibility to manage the agency effectively. Before you hire somebody, whats the hiring process of a contractor before they begin work on such a project as this . I cant say that ive ever been directly involved in that hiring process but i am aware that we set criteria for the credibility of the contractors and we look for those with experience and background thats appropriate