S.1047 - Water and Power Bills

Statement of Grayford F. Payne, Deputy Commissioner for Policy,

Administration and Budget Bureau of Reclamation A

U.S. Department of the Interior

Before the Subcommittee on Water and Power Committee on Energy and Natural Resources United States Senate

S. 1047 – the Leadville Mine Drainage Tunnel Act of 2011

June 23, 2011

Madam Chairman and Members of the Subcommittee, I am Grayford Payne, Deputy Commissioner for Policy, Administration and Budget at the Bureau of Reclamation (Reclamation). I am pleased to provide the views of the Department of the Interior (Department) on S. 1047, the Leadville Mine Drainage Tunnel Act of 2011.

The Department last testified before the Subcommittee on legislation related to the Leadville Mine Drainage Tunnel (LMDT) in June of 2010, and prior to that, in April of 2008. Since the last Congress, the sponsor has continued to refine the specific language of this bill, and incorporated reference to new information from the U.S. Environmental Protection Agency (EPA) and the Colorado Department of Public Health and Environment (CDPHE) regarding new management actions at the California Gulch National Priority List (Superfund) Site, which overlies the LMDT. S. 1047 is consistent with the Department's ongoing commitment to ensure that the LMDT poses no threat to public safety and the environment. The Department supports the revisions made to the bill to date and looks forward to working with the Committee on further refinements to clarify remaining concerns.

The bill has been substantially improved to address the concerns raised by the Department related to reimbursement and liability. In our previous testimony, the Department was particularly concerned that the bill could have been understood to create a liability for Reclamation where none currently exists. S. 1047 ameliorates these concerns by appropriately identifying ongoing responsibilities of the Secretary of the Interior. S. 1047 contains new language not found in previously introduced versions
of the Leadville Mine Drainage Tunnel Act.ⁱIn particular, Section 3 of S. 1047 acknowledges the multi-agency nature of efforts underway at Leadville, and authorizes the Department to enter into agreements with other entities for reimbursement in the event of improvements or expansion of the treatment plant in Leadville. The bill language authorizes an agreement to cover costs for "any necessary capital improvement" as well as costs associated with "flows that are conveyed to the treatment plant," including surface water. We note that the Department interprets section 3 to affirm existing discretionary authority to improve or expand the treatment plant as well as to allow the Secretary to enter into reimbursement agreements with other entities with respect to the treatment plant.

We continue to assert that the language in Section 2 of the bill, which calls on the Secretary of the Interior to "take any action necessary to maintain the structural integrity of the [LMDT]," does not take into consideration Reclamation's 2008 Risk Assessment on the LMDT. The Assessment's purpose was to evaluate the stability and assess the risk associated with the LMDT. The Risk Assessment utilized a similar process to the one Reclamation uses to assess risk at its dams, a model that is an international standard for conducting risk assessments. The Risk Assessment's independent peer review confirmed that it is highly unlikely that a sudden release of water could occur from either a blockage in the LMDT, or through the bulkheads installed in the tunnel. Moreover, the Risk Assessment concluded that even if an existing natural blockage in the upper part of the LMDT failed rapidly, a sudden release of water through the lower blockage and bulkheads is unlikely. In 2008, Reclamation also worked cooperatively with the EPA and CDPHE to install additional drainage capability into the LMDT. We have also held several public meetings with residents living in the Village at East Fork and others in the Leadville area to convey Reclamation's findings that the LMDT is safe, and have continued an active dialogue with the EPA during the agency's revision of the proposed remedy for Operable Unit 6 (OU6) of the California Gulch National Priority List (Superfund) Site, which lies above the LMDT. We agree with the remedy selected in EPA's amended Record of Decision, published in 2010, which would implement actions to avoid diversion of water into the LMDT. Recent studies conducted by EPA conclude that using the mine workings and the LMDT to convey water cannot be relied on for the long term, and that it is neither cost effective nor efficient to treat diluted acid rock drainage this way in perpetuity. We have also had very productive interactions with Senator Mark Udall's office and the Subcommittee on this legislation, and we appreciate those discussions.

We recognize the desire of Congress to assure the residents of Leadville and the Village at East Fork that Reclamation will continue to manage its facilities appropriately, and be accountable. This legislation essentially codifies these ongoing actions for the long term.

This concludes my written statement. I am pleased to answer any questions the Subcommittee may have.

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ⁱThe Committee‐reported version of S. 3404 during the 111^thCongress was amended to include reimbursement language that is similar to the language found in this session's S. 1047; however, the reimbursement language was not part of S. 3404 at the time Reclamation testified on the bill on June 9, 2010.