Water Resources Bills: S 3404

Statement of Michael L. Connor,

Commissioner

Bureau of Reclamation

U.S. Department of the Interior

before the

Committee on Natural Resources

Subcommittee on Water and Power

United States Senate

S. 3404, The Leadville Mine Drainage Tunnel Act of 2010

June 9, 2010

Madam Chairwoman and Members of the Subcommittee, I am Michael Connor, Commissioner of the Bureau of Reclamation (Reclamation). I am pleased to provide the views of the Department of the Interior (Department) on S. 3404, the Leadville Mine Drainage Tunnel Act of 2010. The Administration supports the sponsors' intent with this bill to ensure that the Leadville Mine Drainage Tunnel (LMDT) poses no threat to public safety and the environment, and to facilitate the clean up of a Superfund site in the vicinity. For reasons described below, however, the Administration has both policy and technical concerns about this bill and does not believe that legislation is warranted at this time. We will continue to work with Federal, State, and non-Federal parties on water resource issues at the Leadville Mine Drainage Tunnel (LMDT).

The Department last testified before this Subcommittee on legislation pertaining to the Leadville Mine Drainage Tunnel (LMDT) on April 24, 2008. Since that time, Reclamation completed a Risk Assessment analyzing potential dangers posed by water blockages inside the tunnel, and worked cooperatively with the U.S. Environmental Protection Agency (EPA) and Colorado Department of Public Health and Environment (CDPHE) to install additional drainage capability into the LMDT. We have also held several public meetings with residents living near the Leadville area to convey Reclamation's findings that the LMDT is safe, and have continued an active dialogue with the EPA as it revises the proposed remedy for Operable Unit 6 of the California Gulch National Priority List (Superfund) Site, which lies above the LMDT. We have also had very productive interactions with Senator Udall's office on this legislation, and we appreciate those discussions.

The Department has three principal concerns with the language in S. 3404. First, we do not believe that the requirement in Section 2 of the bill, which calls on the Secretary of the Interior to take "such steps to repair and maintain the structural integrity of the LMDT as may be necessary," takes into consideration Reclamation's 2008 Risk Assessment. The Risk Assessment, completed in the Fall of 2008, is described in greater detail below. Second, a determination by the EPA and CDPHE was made in June of 2009 that portions of the current remedy for Operable Unit 6 of the California Gulch Superfund site are not efficient or sustainable, and the agencies are proposing to change that remedy this year. EPA and CDPHE jointly concluded that "using the mine workings and the [LMDT] to convey water cannot be relied on for the long-term." In view of this ongoing process, the Department also does not believe that Section 3 of the bill, which contemplates new responsibilities for the Secretary of the Interior to treat additional flows of water diverted from the surface of Operable Unit 6 into the Leadville Mine Drainage Tunnel, is appropriate. Finally, Section 3 of the bill amends Section 708(a) of Public Law 102-575 in a manner that could be construed as conferring responsibility on the Secretary for facilities which have been listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or are subject to the Resource

Conservation and Recovery Act (RCRA). Reclamation is not a Potentially Responsible Party for contamination at the Leadville Superfund site, and believes that this language serves to create that impression and could be construed as creating liability where none currently exists.

The LMDT is located in Lake County, Colorado, and was originally constructed by the Bureau of Mines from 1943 to 1952. It was intended to remove water from portions of the Leadville Mining District to facilitate the extraction of lead and zinc ore for the WWII and Korean War efforts. Reclamation acquired the LMDT in 1959 with the intention of using the tunnel as a source of water for what was then the proposed Fryingpan-Arkansas project. Due to more senior existing claims on the water, no water rights for the discharge were ever obtained by Reclamation. The LMDT drainage discharges into the East Fork of the Arkansas River.

In 1983, EPA listed the California Gulch Site on the National Priorities List of Superfund sites. The 18-square-mile area was divided into 12 areas called Operable Units (OU). The LMDT is located beneath a portion of a surface unit, OU6 that covers approximately 3.4 square miles in the northeastern quadrant of the Site. Groundwater in the California Gulch area is within a separate operable unit -- designated OU12. Reclamation holds title to the LMDT on behalf of the United States, but does not own or operate any sources of contamination on the surface of OU6 (i.e., waste rock or tailings), or any portion of the surface itself.

As part of the implementation of an OU6 remedy proposed in 2003, EPA has been collecting surface runoff from mine waste piles and discharging that surface runoff into the Marion Shaft, where it moves through the mine workings to the LMDT. This water is seasonal and totals approximately 3 to 5 million gallons a year. It has proven to be possible for the Reclamation plant to treat limited amounts of waters from OU6 for EPA pursuant to agreement and EPA's reimbursement. After reviewing technical data suggesting that the remedy proposed in 2003 was neither effective nor sustainable, EPA in June 2009 announced that, in 2010, it planned to revise this proposed 2003 remedy, a process that is nearing completion today.

The new data sheds additional light on the complex site hydrogeology, and suggests that the collection of water at the surface and the diversion of portions of the water into existing shafts, and to the LMDT, is not effective in the long term. Seasonally, groundwater levels fluctuate near the LMDT. Groundwater flows into the LMDT at numerous locations, and flows out of the LMDT at the portal and also into surrounding rock formations. In addition, EPA and CDPHE have determined that the new remedy should prevent the generation of contaminated surface waters in the first instance, thereby alleviating the additional 3 to 5 million gallons of contaminated surface water that is currently diverted through shafts into the LMDT.

These characteristics also heavily influenced the findings of Reclamation's 2008 Risk Assessment. The assessment's purpose was to evaluate the stability and assess the risk associated with the LMDT. Reclamation began its scientific Risk Assessment in 2007, and when initial findings were available, they were independently peer reviewed. 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 independent peer review confirmed Reclamation's analysis 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 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.

When the Risk Assessment was published in the early Fall of 2008, it was posted on the Internet and distributed to the media. Reclamation conducted three public meetings and sought public comment on the findings. We remain confident in the value of the Risk Assessment and the validity of its findings.

There are three sources of LMDT water currently entering the treatment plant. First, the natural rate of drainage from the tunnel portal is 500 gallons per minute (gpm), or 1.1 cubic feet per second (cfs). Second, there is a well in the LMDT about 1000 feet in from the portal that pumps about 500 gpm or 1.1 cfs directly to the treatment plant. And third, since June of 2008, Reclamation has been receiving another 700 gpm or 1.6 cfs, accommodating the additional drainage capability via another well installed by EPA about 4,700 feet in from the portal. This well was installed in response to public concern about rising water levels in the vicinity of the LMDT.

Reclamation has a maximum treatment plant capability to process water at a rate of nearly 2,100 gpm from the LMDT or 4.8 cubic feet per second cfs. The NPDES permit for the facility states that the 30-day Average LMDT discharge cannot exceed 1,736 gpm or 3.89 cfs with a Daily Maximum ceiling of 2,313 gpm or 5.2 cfs.

As these actions illustrate, Reclamation is currently managing safely all waters discharged to the LMDT. Nevertheless, Reclamation has an Emergency Action Plan for the LMDT and water treatment facility that has been in place since 2001 and is regularly updated. Water level indicators and other warning systems near the LMDT are tied into the water treatment plant's auto-dialer for employees, and an audible warning system was installed in 2002 to alert the Village at East Fork residents in the event of an emergency. The system plays an alert message in Spanish and English.

We understand the concern of some in Colorado that Reclamation may one day "walk away" from the work at Leadville. I would like to affirm that Reclamation is committed to assuring that the treatment plant, pumps and pipelines are operated in a manner so as to protect public safety at the LMDT. In addition to these actions, we support the process of CDPHE and EPA to determine a water management portion of the remedy at OU6 that is more effective than actions the agency proposed in 2003. 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. Reclamation is awaiting the publication by EPA of a revised Record of Decision, and believes no legislation should be enacted until that process is complete. As such, the Administration does not believe that S. 3404 is warranted at this time.

At a minimum, if any legislation were to proceed, it should be amended to address the issues raised herein.

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