mines, they come from coal reclamation fees. >> that's correct. >> coal companies pay toward abandoned mine cleanup. they contribute only a small fraction of what we need to deal with the problem. the aml is set to expire in the coming years. i want to take this moment to urge congress to turn its attention to reauthorizing the a aml so we can continue the important work in reducing the impact of abandoned mines. thank you, mr. chairman. >> ask unanimous consent standard form 95. without objection. so ordered. now recognize the gentleman from texas for five minutes. >> thank you, mr. chairman. ms. mccarthy, the epa internal review documents of the spill said there is no documentation of flow for the gold king mine available before july 2005 when it was discharging about 42

gallons per minute. then in september of 2005, it was up to 135 gallons per minute. 2006, it increased to 314 gallons per minute. 2009 to 2014, the rate dropped again all the way down to 13 gallons per minute. in september of 2014. and according to -- your staff gave our committee staff documentation on september 8th post blowout added discharge. it was approximately 600 gallons per minute. is there any new data since september 8 that changes the 600 gallons per minute discharge rate? >> i think i have a slightly lower figure. but i'm happy to provide you with that, sir. i don't want to speak when i don't have all the data at my fingertips. >> okay. you have come to testify and you

don't know whether epa made it worse or better since september 8th? >> it is is something on the order of 550 gallons per minute, if that's what you're asking me. >> the problem is -- i'll have a good demonstration. but when we are talking about raw sludge, the fact is before the blowout, the discharge rate was 70 gallons per minute. that's 100,800 per day then. now 600, maybe 550. but we are talking 800,000, 900,000, eight times what it was. that's when the epa handling. miss mccarthy, i'm just blown away.

you indicate that you did not anticipate the epa did not anticipate that this type of blowout could occur. >> i didn't say that. >> oh, okay. so you just is went into this knowing this kind of damage could occur but not preparing for it. >> well, we went in this specifically because the concern was raised by us and other professionals that there was potentially a pressurized blockage there. we were actually trying to take action that would mitigate that. >> okay. but it never crossed epa's mind that you may do more damage than you did good? >> of course we -- >> okay. then what activity did you do to be prepared for when the flood gates flew open and you did this kind of damage to the environment? how were you prepared for that other than with waivers of claim certificates? >> no, sir.

we spent a great deal of time with the state of colorado -- >> we're going to find out about that from colorado. you told us before, at least you testified on july 9th under the waters of the united states rule that that was developed -- you said, "that's what we relied on, both the knowledge and the expertise of our staff, the information we received from the public and the comments and the science that's available to us. much but on april 27th, joel and darcy, assistant secretary for the army for civil works from major john peabody proved that was a false statement. the 4,000 foot determination was not based on science. you did not have proper evidence of that. then we had a federal judge ralph ericsson that verified that you didn't -- so you come in and tell us, oh, we worked with the state of colorado.

it doesn't sound that way, once again. and the result is that we continue to have massive damage to the environment. since you've been at the epa, how many people are industries, companies have been charged with criminal violations. >> i don't have that number, sir. >> you have charged plenty of people, right? >> we have conducted enforcement activities that we should conduct. >> how many people at the epa are under investigation right now for this massive discharge that you created. >> i'm unaware of any criminal investigation, sir. >> well, i guess there's the rug, isn't it? your agency is above the law. and all the damage you do to the environment. and you want to be in charge of all the waters of the united states and you couldn't even figure out to get ready for a possible discharge. i yield back.

>> we are holding ourselves fully accountable, sir. >> thank the gentleman. >> wait. see -- >> hold on. hold on. the gentleman's time has expired. gentlewoman from california, ms. napolitano. >> a lot of questions first of all, in my subcommittee. i was not privy to any information from epa. that i hold a little bit concerning. so please keep that in mind. excuse me. how many of the companies that you know of that are mines, wherever, whether it's gold, silver, coal, are foreign owned? do we have any record of that? >> i don't have that. >> do you have any way of being able to tell this committee? because some of those companies are foreign owned, they're

making money. they're not being made responsible for anything they leave behind. they leave it up to the u.s. tax payer to pick up any kind of remediation. and i think that needs to be part of the answer we need to look at. in the rest of the united states, and i'm very, very concerned about what happened, but what about the rest of the nation that has these hundreds, maybe thousands of mines? how many of those are close to blowouts? >> well, 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. >> can you break it down so we have an idea what the problem really is. >> we can do our best. but 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 need for emergency response. the animas, upper animas was in that category. >> but i would like to see if you can answer some of this for the whole committee. and i'm glad mr. bishop is worried about fish and wildlife and endangered species. that is dear and near to the heart of a lot of us. with that, your budgeting, how many budget do you require to be able to do a job to maybe look at avoiding what happened? >> we just have an environmental fund that allows us to tap that -- >> how much is is that fund? >> fiscal year 2015 super fund remediation action budget is $501 million. >> does it have to be on the super fund? does it have to be designated

super fund? >> no, it doesn't. this is for remediation action we need to take whether it's on the super fund list or not. >> and you are currently working with how many mines to be able to address the issues? >> i'm sorry. i'll have to get back to you. >> would you, please? that would kind of answer some of the questions i have. and then how many other agencies? 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 -- the bureau of indian a affairs. what role do they play in being able to notify native american tribes? are they immediate? do you work with them? do you task them with doing the

outreach. how many other areas do we have that are really concerning in terms of contamination that are cancer us. lead, arsenic, uranium. what are the hard minerals that will affect the health of our nation? there are so many that we don't know. we have experience in these mines. they involve sudden releases like the ones here and the potential for that. just periodic mine discharges that are impacting waters. this is a lot of them. >> i'm running out of time. but i want to be sure that my colleague in pennsylvania, if there is a continues 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 npl. >> he is shaking his head behind you. so we don't know. >> when the state wants us to come in and work -- >> is it only at the request of the state. or do we have the ability to look at a lot of these mines. >> we make priorities depending what we are asked to do. the challenge is limited. it takes care of short-term problems. >> so what do we need -- >> thank the gentle woman. now the gentleman from florida. >> thank you. let me kind of pick up where the gentleman from texas left a off with accountability. if a private company or corporation or individual dumped

7,500 gallons of toxic chemical into a natural waterway, wouldn't there be a penalty? wouldn't you hold them accountable? >> it all depends on the circumstances, sir. we would hold them accountable for the cleanup. whether or not there would be a penalty or not would depend on the circumstances. >> but someone would be held accountable, responsible, and you do that. >> yes. >> and you do that. that's part of your responsibility? >> yes. >> one of the frustrations i think members of congress and the american people have is that holding agencies accountable. you've been there since july of 2013. you were there during the spill. is that correct? >> yes, sir. >> and you are in charge of the agency? >> yes, sir. >> is there an ses individual

below you that would or a deputy that also would be responsible? for this -- looking at this matter and overseaing it? >> i have an assistant administrator is. >> who is that? >> maddy stanislaw. >> and you have shawn mc? >> that's correct. >> and you have an on scene epa -- >> on scene coordinator. >> who is that, for the record? >> i do not know the individual's name. >> and you've conducted some preliminary investigation. >> yes. >> everything we see it looks like there was a mistake. you have a contractor too who the epa was overseeing. who is is being held accountable based on the information you have so far? >> well, one of the reasons why

we asked doi to be an independent investigation is to make sure somebody independently looked at that and give us information so there is no lack of judgment or lack of oversight. >> that is not complete? >> no. that is going to be completed in october. >> and i want you to tell the committee and report back to the committee who is held responsible. i have reviewed some of the bonuses given to different agencies in the past. at least historically epa has paid some of the biggest performance award. in fact, some of your ses class folks 64% of them got bonuses. i want to know if there are any recommendations pending for any bonuses for any of these individuals. and that made part of the record. and appropriate i would like in the next 30 days. anything pending. and then also i want for the long-term record for you to report back to the committee the

findings and who is held accountable. i think that's the least we can do. and then which action is taken about to those individuals who have done this damage to the environment and caused untold damage to the people sitting behind you who we're going to hear from. and the other thing too is the estimate of the cost for getting this all back to regular order. do you have any estimate? >> in terms of what it would take. i know we have 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 animas river. because while there may be some continued discharge from the gold king mine, there continues to be a much larger discharge. that was the immediate response.

>> i think this is a reasonable request. >> absolutely. >> that we hold you and others accountable that are responsible for this. it can be based on the independent findings. we are looking at $10 million of costs and a disruption to many parties. is that correct? >> i fully recognize and i expect to and i will cooperate in any amount i can. >> dealing with the redefinition of navigable waters and rule. what is 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 all but 13 states is being fully implemented.

>> it's about time that we as a congress get serious about responsible party. and who is responsible for making this mess and cleaning it up. the same thing with radioactive

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 a ashamed of ourselves. we should be ashamed of what we're doing in this committee today. the current owner of gold king mine todd hennis said, i've been predicting the last 14 years the situation would continue getting worse and worse. i foresaw disaster, and that has been borne out. why are our tax payers responsible for cleaning up abandoned mines while owners can sit back and do nothing? i mean, this is -- that's the question we need to be asking as a committee. why don't they have any responsibility when they made

the mess? and, you know, we all have is a responsibility to be good stewards of the environment. in this case we let them one party off. mr. chairman i yield back my time. >> thank you. i hope you have the guts to stand here and ask the president of the navajo nation here today if it is a farce. >> i hope we have the guts as a congress to try to clean it up and stop pointing fingers. that's what i hope. >> well see if you ask the navajo nation if it's a farce. >> i recognize the gentleman from louisiana, mr. fleming, for five minutes. >> ms. mccarthy, in louisiana we have a saying that the chef should occasionally taste their own sauce. what i mean by that, i want to bring up a different issue. but it is is connected. are you familiar with the camp

menden issue relative to the epa? it was handed out of dallas. >> yes. i am. >> there was a big explosion in 2012 that accumulated over 15 million pounds and it was lack of oversight by u.s. army over this private company that allowed this to happen. so we had the problem with how are we going to get rid of this 15 million pounds. of course epa became involved. but we were shocked that the epa, first of all, said, well, we're not sure. i guess the local state will probably have to pay for it. we finally got money from the super fund. but then after analysis the epa said we're just going to burn it on the open. which means all of these toxic substances, arsenic led, whatever, going into the air and into our ground and into our

water. now i think back about the coal industry that has been severely hampered because of co2 emissions, which is not as toxic, if toxic at all, as arsenic and lead. coal-fired plants shut down. and now 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 15 million pounds of propellant. we finally got the epa to back down is and to allow closed burning, which is a more costly procedure. but it really seems to me ironic that the epa, which can provide huge fines from private industry is 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 push back from the community did we get the epa to do the right thing. the epa was clearly trying to take the shortcuts and avoid the costs. and if you look at this situation, in competently the epa allowed of course this toxic spill, this water that now in our environment, it will will never be cleaned up completely. i guess what i'm saying is there seems to me to be a double standard. the epa is not holding itself to the same standards that you hold individuals and industry itself to. >> let me respond to camp mendeposit. i didn't be more pleased with the outcome. it took a long time to get there. and i do appreciate the way in which the state intervened on that as well as all the other

elected officials. >> yes. >> it was an option chosen by the dod. it was not an uncontrolled burn. i think it would have ended up in a much better price and the community participated wonderfully well in and i couldn't be more pleased. i want you to understand, and i'm sure that you do, that epa's job was to try to support an effort to address what we knew was almost a likely inevitability of a blowout at that mine, as well as knowing that the river was being damaged 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 different, we will find that out. >> i appreciate that. my question is that private citizens, americans, and companies. >> yes. >> are held to a high standard. and the punishments are severe.

but we're not hearing today of any punishments or even reduction in pay or even fines that are going to occur because of this in competency. so that's the point i'm make as a double standard. yes, i know you're doing the best you can and so forth. one agency after anotherings and now the epa, has these responsibilities and broad powers that no single company had to inflict damage, to inflict severe punishment and penalties on americans. and yet we don't find anything within where the decision makers and the people with all of this power have is any accountability for that. >> so when a spill like this happens, accountability is for the persons who actually needs to take responsibility 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? that's what we're looking at now. and we're independently having that done. and i will live with those consequences and i will appropriately take action. >> weúbce÷ certainly want to heo those decision makers were and what happened. thank you. i yield back. >> we will now recognize the gentlewoman from massachusetts. >> thank you, mr. chairman. welcome, administrator mccarthy. this has not been a simple conversation for you. epa, a lot of questions have been raised and i think on both sides of the aisle i think we were all dismayed to see the horrific way in which the river was so impacted. i came through the industry revolution where rivers have run very different colors depending on the dye cast into them at the end of the manufacturing days. so we are 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 willing to be here and answer appropriately the questions we all have. i want to thank you for it. and i think it is somewhat disingenuous to compare it with a private spill. as we heard, you have all proactively made a decision to investigate yourself through the inspector general and the epa and to the bureau of reclamation as well as doing an investigations. and as you 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 in those grounds have accidentally abandoned them and left an environmental mess. and we have a difficult time

holding them accountable. and you have said you were there because of concern with a blowout, the pocket of a blowout and degraded water quality. you 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 you also talk about given that long list you create a national priorities list. and i'm curious and think it would be helpful to explain how you prioritize the vast number of mines that have the potential to pose such harm to our environment. >> we have some that we consider in terms of what deserves to be on the national priorities list. we started back in the mid-90s looking at this and suggesting that it be on the national priorities list. what we found at that point in time was that the communities in

the states were actually getting together in the animas river stakeholder group who insisted they could do a good job at addressing this issue without taking that measure. they actually did a good job up until 2005, that river was getting cleaner all the time. but a turnaround in the river. and that turnaround meant we were getting a lot more discharge. we would is see fish populations degrading. that's why we were continuing to look at it in terms of 2008 to see if we should look at the upper creek, the cement creek as the section we would articulate and look at for the national priorities list. out of that discussion came a collaborative effort with the state in the animas river watershed group -- the stakeholder group to take a look at what we could do. that's when the concern of a blowout arose. and we started working on a work plan that was very public, went to public hearings about what

epa could do to try to address that issue while people looked at the long-term challenge and thought about how best to do it. that's the history of the site. it is a long one. and obviously today not a successful one. and so the local communities initiate their action with the epa. what was the process by which that took place. >> we had been working with them through the mid-90s is how far back it goes. and they pulled together the 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 became a collaborative effort knowing they had a large problem and 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 work with the state of colorado.

folks who knew the area better than we did. and to identify what the work should happen. and that was that work plan we were working under at the time the spill occurred. it was fully developed with everybody's input with public hearings. did we underestimate the potential of the spill at the site? did we do something we shouldn't? those are the issues that the independent review will give a fresh eye to. but it wasn't because we didn't try. it wasn't because we weren't working collaboratively. >> were a mine operator -- >> we thank the time of the gentlemanwoman. time has expired. >> thank you, mr. chair and administrator mccarthy, thank you for being here. i swore i would go back to some responsibility questions. i want to get to something that is practical especially since the snowy weather, winter, may indeed be coming to this very

soon, this area. it's expected that snowy conditions will hit early october, which will impact the testing, recovery, and remediation efforts, i would assume. what steps is epa taking to prepare for these conditions? >> we're looking at two efforts. primarily one is we're looking at a long-range monitoring plan that we are about to put out in draft. all the groups we are working with in the area, including state, local, county officials and the tribes. and we will hopefully get long-range plans agreed to that will consider the challenges we're facing with with the winter months coming up. >> can you agree you will not abandon the site? >> we will not abandon the site. the second thing, looking at whether we need to enhance the treatment right at the site. that's not the full remediation that the upper animas needs. we are looking at that in

collaboration with the local state and community and 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. >> with this site. >> independent from this site so we can learn those lessons and ensure it doesn't happen again. my understanding is we have at this point identified 10 sites that would actually have put work on hold that seem similar enough we just want to monitor that situation as long as there isn't an imminent hazard. we are waiting on that to take a look at it. >> isn't it true that the contractor whose work caused or contributed to the disaster is still working at the gold king site? >> yes, that's 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 we face is our on scene coordinator was at that site. they were overseeing the work. and 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 -- >> just a big, yellow plume? >> well, that was -- that was a result of obviously actions 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 wouldn't call it bonus. but $500,000 additional to clean up the mess they made?

>> i'm not aware what the sums are. if you're referring to the fact that they were the first on site 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 don't know. >> well, i appreciate you checking into that. it seems they are indicated this company, this contractor that was highly responsible for the disaster, they were there. they were able to be there as quickly because they were the ones that were doing it and caused the spill to take place. it appears they received an additional $500,000qj;é on top their contract to now do the cleanup for the mess that they made. that to me doesn't sound appropriate. >> i'm happy to provide the information on what other

compensation may have been given to this contractor. but i also want to reiterate that epa is the one that is taking full responsibility for this. and doi will tell us whether mistakes were made at the site and whether there was any miss judgment on work we didn't do in terms of -- >> let me get to that. and i appreciate you said that there were worse times. we appreciate any entity that says the buck stops here. tell us what way epa bears the blame the in this case. >> we will wait for the doi review to tell us that. >> what do you think? we can read reports. what do you think? >> certainly already lessons learned. do i think we were as good as we should be on notification? no. i don't think so. i realize we had three different regional offices involved. we had 120 miles to account for before it even hit the navajo nation lands. and we should have been more on top of that. and we should be looking at

that. that's why we have already demanded that those actions take. did we work effectively to get our response actions up? i think our response actions have been good. can they improve? we will look at ways in which we can do that. one of the big open questions i think you have raised in this committee, and i'm sure we will be talk building again is how did the spill happen. did we look at a way that wasn't due diligent enough. did we have the right people looking there -- >> and i think that goes back. >> time has expired. mr. lynch for five minutes. >> thank you, mr. chairman. ms. mccarthy, normally i see an old friend at a wake or funeral, i say it's good to see you. sorry to see you under these circumstances.

it's sorry to see you under these circumstances. i love my epa in my region. >> thank you. >> i want to say some good things here. they are very responsive, very conscientious. i appreciate the work they do. this is not the epa's 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 an ironworker there and lived on the navajo reservation. i was a guest of the navajo nation for a couple years. i know how the tribe is intensely invested not only financially but spiritually in their land. 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.

they have 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 of 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're going to be as releaptless in cleaning up this spill and this accident as you have been in some cases where

you come down on some industries we're all aware of that find themselves in similar situation. we need that type of guarantee. we need you to be all in on this. we need you to be relentless in terms of fixing your mistake, what happened here. albeit i know there were good suspensions here, but good lord, this is a beautiful area. and now it's damaged extensively. and we need your help to set this thing right. >> well, i think you know from my forthrightness about taking responsibility for this that we are all in. is it extraordinarily difficult and upsetting for the navajo? there is no question about it. i recognize that. we're work to go figure out what we can do together to resolve the circumstances here. but i know it is going to take a

really long time. this is not epa's final best. what did you say? finest hour. i am here to tell you 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 and the san juan in a way that takes care of the underlying fundamental challenge we have here. i want to say that this was not a compliance issue. this was a response action to deal with basically contamination that epa wasn't the responsible party for. am i excusing our role in this? did our actions actually contribute to this? if we did anything wrong we will be fully accountable for that. in the meantime, we have to make good to the navajo, to the southern yute and the states involved in this. no question about it.

>> as i said before, there is spiritual dimensions to this for the navajo and the yute as well. i live not too far from ship rock. like i say, there is an intense investment here on the part of these tribes. this is their homeland. sometimes we forget they are a sovereign nation. and we have a huge responsibility here to fix what we have exacerbated. maybe we didn't create it, but we certainly exacerbated the problem here. we need to step up in a big way and meet our obligations. mr. chairman, i yield back. >> thank the gentleman. the gentleman from california mr. mclintock. >> ms. mccarthy, there were people emerging from the mine as

it happened. we saw that earlier. stanislaw testified on these videos. and i think we have a clip of that testimony. they show the blowout as it happens. according to the website, and i want you to look on the far right-hand 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 the first question for you is the statement i just read from epa's website accurate? >> it is accurate. >> okay, great. do you have any reason to believe 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 committee. let's have video number one.

>> that is really high. are they going to close it up? well, they're here 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? let's have the second video. >> it's really high. are we going to close it up?

>> i'm going to ask that we stop it here. obviously it was -- >> well, you said that -- >> obviously the tape was heavily edited. this was a week ago when your agency was given misinformation to the congress. you've had a week. and i'm going to ask you again. is this editing and concealing of videos epa's idea of transparency and accountability? >> no, sir. that originally posted video should not have been redacted when it was pointed out to us. we have posted the unredacted version. >> you understand the concern here. two basically. one is the fundamental competence of the epa. that speaks for itself in this. the other is a double standard that seems to be at work here. you testified earlier in this hearing that you're not required to consult with the national fish and wildlife service because you didn't intend to cause the spill. the chairman pointed out, theres

a company that accidentally spilled 7,500 gallons, one fourth of 1% of what the epa spilled. you went after them viciously and got six criminal indictments. you spent people to jail over that. people in alaska operating a backhoe accidentally causes a 5,000 gallon spill. you sent him to prison. no criminal charges are being filed against epa officials, are there? >> well, i think that we are waiting for the department of the interior to actually produce the report. if they identified criminal or administrator -- >> you understand the skepticism of the agency investigating itself. you're holding yourself accountable that you are going to take full responsibility. does that mean that you're resigning? >> no, sir. >> have you asked any of your

spword is gnats to resign? >> no, sir. >> have you docked anybody's pay? >> no. >> have you yelled at anybody? >> well, maybe. i am taking accountability for the spill and issues around that. but we're working as closely as we can to independently get this looked at. and we will be holding people -- >> one more question. there's a blog entry reporting on this. pointing out after the initial spill things went from bad to worse for those relying on the river. navajo farmers unable to use water from the river were provided with emergency water, reserves from the epa. unfortunately this water was contaminated too, another epa coverup. epa officials told navajo leaders the individual reporting contamination was "unstable and deliberately agitating in an attempt to undermine the agency. the navajo leader took the epa's word at least until he observed

the pollution for himself. is this true? >> i understand the tanks were tested by the navajo and found to be clean. it was drinking water put into fully cleaned tanks. that's my understanding of the fully clean tanks. that's my understanding of the situation. there is definitely concern. do i think the level of mistrust contributed to that and do i understand why given epa's responsibility here? i absolutely do. it will take a long time, i think, before anyone begins at least in the navajo to be able to trust our relationship again. do i regret that? but i'm working with them. if they want third party review of everything we do, i'm trying to identify how we do this. we will rebuild this trust. but damage has been done beyond what happened to that river and it will take a long time to repair that. but i'm going to do the best i can to make sure that happens. >> i now recognize the gentleman from california, mr. loeweloewe,

for five minutes. >> thank you, mr. chairman, thank you, administrator mccarthy, for coming, for being so forthright, for not trying to duck tough issues, and for being accountable. but i think that we still have to go back to some of the points that were made before, that the gold king mine spill tragedy reminds the nation of the reality that we have, quote, a creeping killer in the shadows. they're up to half a million abandoned mines nationwide. many of these mines are dangerous. they're discharging toxic, acidic mine waste into our surface waters. if we don't do anything to properly clean them up and close them down, we will have more disasters. that's it. i mean, i think that's what i've learned after being here. so i'm very sorry it took this

tragedy and i'm sorry for some of the actions that have been taken. but i am really glad that we're focusing our attention on what is frequently i gnored or forgotten, to help address this problem of abandoned mines. i point out again that the ranking member, many of my colleagues and myself, have introduced legislation to clean up and properly close down these dangerous mines. hr 963, the hard rock mining reform and reclamation act, would also provide assistance to mining communities and ensure a fair return to taxpayers f for extracting public minerals. i would like to urge all my colleagues here today to become co-sponsors of this important legislation and help us to prevent the next abandoned mine

contaminationle 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. epa, i understand, was parenting with the state of colorado on the gold king mine project; is that correct? >> yes, sir, we were cooperating with them, yes, and coordinating their efforts. >> and why was the epa and colorado working on the gold king mine as well as opn other mines in the area? >> because of degradation in the water quality in the animas river and san juan river being contributed to by these four mines in the upper animas as well as a threat of blowout in the mine, which was a very big concern. >> and how did that happen, why are we in this situation?

>> it's a long history, but these mines have not been actively worked since 1991. some of the mines in the area have been plugged, which shifts the hydrology and creates a backup. in the gold king mine, it had some collapses in the mine which made it inaccessible. we were trying to get a handle on a situation that was growing increasingly dangerous. >> again, 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're not obligated to. and what we use in terms of our resources, are taxpayer dollars, given to us, appropriated by congress. >> so it's the taxpayers that will be paying for this, and not only this, as we look into the

future, we have -- as you already stated, we have incomplete data as to where abandoned mines are, what toxins they're releasing into our waterways, and we're unable to adequately pay for the cleanup of these abandoned mines. it seems to me, if we take a larger view of the gold king mine disaster, and we move forward with legislation, that something like the hard rock 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 recognize the gentle woman from wyoming. >> thank you for being here. let me set up a scenario. a number of years ago there was

a water treatment plant that was actually downstream that was treating the water from this mine. about 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 create 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 drain pipes, the water built up into the huge wall of water in the mine. and that was a significant cause of the blowout last month. so rather than replace the treatment plant downstream that

was providing cleaned-up water to the utes and the navajos, the decision was made, no, let's not treat it, let's block the drains, store the water in the mine, 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 mine's 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 a slightly different understanding of the history here and issues. so i don't want to pick apart the issue. but i do think we need to have a conversation about it, because i don't quite see the same history here. but i do know there's been many decisions. i want you to understand epa's 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. >> so now that we know that the southern ute tribe has already spent at least $170,000

responding to the spill, who is going to reimburse them? >> actually there's two processes here. the reimbursement process is handled under cercla. basically it's a memorandum of agreement. we need to reach, i've been checking to see if that's been done, that is a routine reimbursement process we'll be able to take care of. those relationships with the tribes and the states are fairly routine for us, because they act as emergency responders with us. the southern utes have been incredibly diligent in being embedded in our command center, working on this. their professionalism is wonderful. we are going to make sure they're properly reimbursed for their expenses. the second part is the claims process, which is not really a reimbursement issue. it's what damages have occurred. and we use the federal claims tort act in order to process those claims.

>> now, how does the federal tort claims act help the navajo? they lost a huge amount of e irrigating water, which can have long term devastating effects if the drought conditions and they don't have the water now or in the future. how can they be made whole? >> there's 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 navajo nation epa to reimburse for their expenses. the second issue also is the claims process, if individuals want to participate in that process as well. i want to make sure that we're all aware that the reimbursement process is quite different. it's quite -- while it's costly, it's easy to do. we have processes in place for

that. the third issue is we are developing a long term monitoring plan, and we need to make sure that that plan allows engagement of the tribes and 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. mr. chairman, might i ask that i have an opportunity to meet with you, director mccarthy, about what you and i perceive as a different scenario with regard to the cause and effect, the chain of events that led to this. >> i will have my staff work with you. >> thank you. >> i now recognize the gentleman from virginia for five minutes. >> thank you, mr. chairman. administrator mccarthy, i would like to thank you for sitting here patiently and capably answering these questions. i would also like to that i think representative lamas for raising the issues of the

bulwarks and changing the hydrology. when the bulwarks went through a consent decree, everything changed. i'm amazed that all these people, all this attention, to attack the epa over a completely accidental release of wastewater when acid river drainage are flowing into the animas creek every year. 3 million gallons on august 5th, and the same water shed gets 3 million gallons every three or four days. there's at least 161 hard work abandoned mines around the country. the u.s. forest service estimates 5,000 to 10,000 miles of rivers and streams located on usfs lands. it seems to me the huge elephant in this room is, all the water drainage from these mines, not the relativity small spill of

only 3 million gallons on august 5th. the chairman said this is one of the worst spills we've ever had. i'm not sure the facts support that claim. 1975, tailings poured into the animas river. in '78, 167 times went in that one day. that's just the animas river. there's spills all over the country. we keep coming back to accountability. what was the process by which the decision was made? in the testimony before we heard about the epa and the state of colorado meeting with the animas river stakeholders group. on august 4th they began excavation above where water is seeping in. it comes back to the colorado division of reclamation, the mistake was that someone

determined that it had low or no pressure, quote, underestimates to the water pressure in the gold king mine workings is believed to be the most significant factor related to that blowout. will it be possible to identify the person or people who made that faulty determination? and should they then be fired or their pay docked or yelled at? that was the heart of the matter. >> that was one of the key findings of our internal review. and i'm sure that's 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 the colorado division of reclamations and mines and safety was with us, making those determinations on the site. and they were looking at factors they could see to see whether or not there was pressure buildup at the gold king mine based on

that day and that evaluation. they made a judgment that turned out to be wrong. whether or not they did due diligence in making that and missed factors that they should have looked at, that's what the department of the interior will hopefully be able to have i sad. we will follow up and hold them accountable. if they forgot to look at something or made a judgment that wasn't based on good science. >> thank you. i read the navajo nation's thorough testimony to be offered later, and i'm sure you did too. they point out not just the concern about the 3 million gallons but everything that's coming and how the epa will deal with that in the years to come, what the navajo nation and its farmers and people will need. is there any reason to think that the august 5th spill was anything more than the trigger

for this attention and participate between the epa and the navajo nation? >> i think it was -- it has raised visibility of these issues in a way that i hope something good can come out of this so we'll be better off in terms of how we manage these sites moving forward. we've been working with the navajo for years. and we will continue to do that. and we will address the concerns they've identified as best we can. >> even before the august 5th spill, most of these things were just a relevant, for their pharmacy, for their water supply, for the spirituality of their land. >> we now know that the water is now at pre-event conditions. that doesn't mean the animas and the san juan are at a point they need to be in terms of the water quality and the protection of it sediment so we're not experiencing the fluctuations we're seeing now. >> the time has expired. i will now recognize the gentleman from south carolina, mr. duncan, for five minutes.

>> thank you, mr. chairman. i think there's a clear double standard with how the epa polices itself and how you police private enterprise. the gentleman from arizona has been a leader on this issue. i would like to give the balance of my time to him. >> ms. mccarthy, 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 that's 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, he states, and i quote, a facility in charleston, west virginia that was previously brought up accidentally spilled 75 gallons

of toxic chemicals into the local water way. the epa's 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 doj to pay attention to that, and i will pay attention to it as well. >> and would the inspector generals be looking at that? >> yes. >> he also references an event that occurred where a contractor accidentally struck a pipeline with a backhoe and contaminated river water. 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 the epa and you are ultimately responsible for the spill and take personal responsibility for this incident, correct? >> the only correction i would make is the department of justice is the one who pursues criminal actions. >> okay. since you believe in parity and a higher standard for government, someone should from the epa go to jail for this incident? >> i am not at all aware that there is negligence or that they didn't do due diligence. those are things that the department of interior would -- >> i would beg to differ. we knew there was a problem and should have alerted everyone along those lines. 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 there was negligent or criminal activity that went into this. that's exactly the same process we're going through today. >> now, when the spill was reported to the national response center on august 5th, the caller repeatedly emphasized how important it was to notify downstream users. the message was relayed to the epa. why is it that the state of new mexico, the southern ute tribe and the navajo nation found out about this spill from sources not the epa, who caused the incident in the first place? >> we always take local information so there is appropriate notification. whether or not it was as quick as it could be, i don't know. but that was an appropriate way in which to notify. >> how hard would it be to pick up a phone? >> we have a whole stream. it's not us individually deciding who to call. there is a contingency plan for notification that's developed with the states, with the local communities, and that what we initiate. this is not done on the fly.

this is a plan that was developed with everybody's input. >> obviously, as a ceo, it failed miserably. it was way delayed. you have representatives that will testify according to that, the navajo nation, the utes. i want to move forward a little bit. this lack of trust that's now been 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 can't rely on being informed what's going on? you talk about collaboration but it shows poor respect. i want to ask one more question before you answer, because i'm running out of time. why is it so difficult, i know the southern utes were on there, for tribes and the states to have seats at the table of the emee me epa's command center? i look over at the president of the navajo nation, this could have been dramatically averted. so i want to know why there's so much reluctance 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 b embedded. we have 11 other people embedded from the tribes. >> something seriously went wrong with this application. i hope as the ceo you would review that. >> we've got a second panel sitting for two hours waiting to be heard. we're going to move this as quickly through, which means you're five minutes. i'll gavel you down at the end of it. if you're in the middle of a sentence, i'll stop you. for the members, don't wait until the last five seconds to ask herdd0ñ a question, give he chance to do this. you're up for five minutes. >> thank you, mr. chairman. actually i can see something

beneficial that came out of this tragic accident. of course you've taken responsibility. i congratulate you on the rapid cleanup. it shouldn't have happened in the first place. but the benefit that has come is it's focused on on mine leaking. i would ask the chairman to put into the record an editorial from the salt lake tribune entitled "real answers on epa failure, not another benghazi." i understand that there may be as -- while there's no federal government data, there may be as many as 500,000 abandoned mines. are they orphans out there, nobody takes responsibility for them, the state, the federal government, nobody? is that the case? >> the state and federal government does the best they can. but even we don't know where many of these mines 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 is on the national priorities list, which you might think of as a superfund list. >> i don't understand why this isn't covered by the superfund. >> there has been discussion about whether it should be on the national priorities list. president begay has written to me. i'll 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 which we're 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 drinking water of the american people? >> that is a continual threat. >> but we don't have any way of knowing that until it's there? >> on the national priority list, epa is responsible for monitoring those sites and for taking action if the responsible party isn't. and so we are monitoring those. the concern i thinkive more is -- >> after you monitor, can you then alert or make somebody do something about it? >> yes. >> who does something about it? >> it's either the responsible party or epa. >> or epa? >> that's correct. but we only have a small fraction of the mines on the national priority list. >> what do you do to get on the priority list? >> it has to be brought to our attention. we have to do a site assessment. we have to consult or confer with the governor of the site or the leader of the tribes. and we have to make a decision that is very process-oriented

and public to get them on a site and then allow us to spend federal and state dollars on a more full and rich cleanup. >> i see the ball is in our court on that. i thank you very much, mr. chairman. >> thank you. i'll now turn to mr. meadows. >> thank you, mr. chairman. ms. mccarthy, good to see you again. i want you, if you could, to clear up something for me. chairman bishop, when he asked you why you didn't notify fish and wildlife, your testimony was you didn't anticipate a discharge so there was no notification. then upon further questioning from mr. fleming about an unrelated, you said that a discharge was imminent, that you believed it was going to happen. which is it? your testimony to mr. bishop or your testimony to mr. fleming? because they seem to conflict. >> let me try to be a little clearer. i apologize if i haven't 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 to try to alleviate that pressure. the actions we were taking were certainly not intended to cause the blowout, in the actual professional opinion of those on the site, that that would not happen. >> let me go a little bit further then, because any time you do any kind of work, there's a plan. >> there is. >> and so who approved the plan? epa? don't you approve the plan? >> essentially that's epa. >> i'm troubled because i looked at that video, and i'm very familiar with 4 h02 permits. i've been there, done that. >> yes. >> and there was no -- it doesn't even seem like you followed your own guidelines that would be applied to the private sector. i didn't 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. >> no, i didn't ask -- i said 402 guidelines. it's specific question. >> i do believe we did, because we were actually -- >> so where was the retention -- >> there was actually a retention pond constructed. >> the retention pond was behind the truck? >> no. >> i saw the video. it started flowing to the truck. where is 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. >> ms. mccarthy, you're talking to somebody who's done this. normally what you have are

multiple retention ponds in case of a blowout. i know that i've had to construction thconstruct them. you anticipate worst case scenarios. it looked like you kind of cut some corners to try and get it done. >> this was one of the issues that the internal review raised as to whether or not the emergency plan was adequate. >> what's your opinion on that? was it adequate? your opinion. was it adequate? >> the internal review clearly pointed out -- >> that it wasn't adequate. >> -- that what they saw was adequate. i honestly think we have to look at the department of the interior. >> why? you keep coming back to that as this independent agency. >> yes. >> well, it's part of the administration. so i hardly see the doi being independent, necessarily the way

that we would think of independence. why not the inspector general? >> the inspector general is looking at this. >> why wouldn't they have the main authority? >> we are going with the agencies that have significant expertise. the department of the interior, the army corps. we made sure we were defining the scope of work. >> did you decide who was going to be independent? >> no, i left that up to staff. >> your agency decided who was going to be independent? >> we actually consulted with a number of agencies. those agencies agreed to do it. >> 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 inquires, you have data and e-mails to back that up. >> i certainly can see what we have available, if that's the request. but 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 the committee. mr. chairman, i yield back. >> thank you. under five minutes. well done. >> thank you, mr. chairman. for both of the chairmen, thank you for having this hearing. ms. mccarthy, it's probably no secret to you that tens of millions of americans fear the epa, despise it, and even hate it. many of them are in my district. one of the reasons many americans feel this way is the high-handed and arrogant way that the epa operates. it is constantly moving the goal posts of environmental standards. in many if not most of these cases, the existing standards are already quite stringent and are applied at great expense of taxpayers or the private sector. to ignore the high economic cost of further tightening of standards shows a disregard for the difficulties that many

everyday americans face in putting food on the table without having to pay higher prices for energy or losing jobs because of the higher costs of regulation to business. so my state of colorado, for instance, is currently being forced to sue the epa to avoid the ill-considered clean energy plan, when has an extremely high cost for little or no environmental benefit. now, the arrogance of the epa is seen by its reaction in the aftermath of the horrible environmental disaster in colorado that we're here to discuss and investigate today. no one has been punished. the epa is seeking to avoid any hit on its budget for judgments against it resulting from this disaster. it wants other parts of the federal government to pay any judgments. so this to me, ms. mccarthy, is a double standard, because had the private sector caused the environmental tragedy in

colorado, there would be serious fines and possible criminal penalties. so this brings me to my first question. in light of the perceived double standard 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, i'm 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, that's 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. you're seeking to have -- >> 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 account and accountability for all the damage it caused. that's exactly what we're doing. >> a private company wouldn't have been find if they were acting in good faith? >> only if the actions they were taking were against an order or a settlement or someone was found negligent or criminal in the activities. and those last two issues are what the department of the

interior will help inform. if we were negligent, if we didn't do due diligence, we'll have to be held accountable as well. >> let me ask you about the contractor. is the contractor being suspended from further work on mines until the results of the investigation come back? >> no, sir, because the consultant, the contractor was working under the direct supervision of our onsite coordinator. we have no reason to believe he wasn't doing the work that he was tasked to do. >> so it was the director's -- epa director's fault for -- >> i'm not sure where fault lies. that's what the department of interior is going to identify. the question is, the key decision that was made there, was the understanding based on the site conditions, and this was the experts from us and

colorado, that there was -- that there was low or no pressure. that was the key decision. it wasn't 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. chairman for having this hearing today. and i would like to pick up where he was. you just said that if a private company did what they should have done, there would be no problem. what i would submit to you likewise, if the epa had done what they should have done, we would not have had this spill. so there ought to be equal consequences for the epa just as there are to private citizens. and i cannot believe for one minute that the epa would the no 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. you said you're 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 ought to refer to the internet, the expertise apparently is restricted to google; is that correct?

>> i'll have to look at the exact sentence you're reading. but the on-scene coordinator has extensive mining engineering expertise. and we work with the colorado division of reclamation and mining and safety, who have considerable expertise as well, including -- >> according to the report, the summary review, epa relied on internet resources to figure out what to do in this scenario. that's according to what you have submitted. let me ask you this: according to the federal tort claims act, are you familiar with the discretionary function exemption? >> 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 you're saying you're not familiar with it. >> i am not an expert in the claims process. i apologize. if we need to answer your questions in more detail -- >> okay. 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 -- i do not concur that -- >> will you not utilize a legal loophole to get out of it? >> i can't say i'll do something against the law. i'm sorry. i can't do that. >> i just don't want the epa to utilize a loophole to try to get out of what you're responsible for. >> i won't try to get out of any of my responsibilities. >> 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 lake. are you familiar with that? >> i don't recall it. >> it's another example of the epa having a similar problem. unanimous consent for this fox news report to be added. >> without objection. >> thank you, sir. i would just conclude, because i know we're 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 interests of fairness to the american people who have experienced the wrath of the epa for much smaller scenarios and accidents than this, i think it's only appropriate that you

would resign as a statement of fairness for what other americans have experienced for much smaller incidents. mr. chairman, i thank you. with that, i yield. >> thank you, mr. chairman. i appreciate you, mr. chairman, and chairman chaifetz, for having this hearing and allowing natural resources to be parts committee. thank you, ms. mccarthy, for making the trip today. first of all, when i look at how people have to deal with their government and their regulations, is proportionality. we know how "accident" is defined. it's when something happened that's out of their control, that they didn't intend to do, that they didn't want to have happened and probably wish they could have headed 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 haven't done things intentionally. so when we talk about

proportion, for example, coming back to that west virginia mines 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, that's 400 times the amount of pollutant that got out. basically we're talking about one company the size of a small backyard doughboy pool versus 400 of those types of pools in this. 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 that 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 contaminating drinking water supplies for many people. it caused significant concern. and it was done by a company that wasn't following the law in their requirements. that's why that was pursued. in this instance i am not saying that that 3 million gallon spill did no damage. clearly you'll 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 couldn't have anticipated, or whether there was fault and blame. that's what we're 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 notifying fish and wildlife, therefore that was a violation of 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. this is a pressure situation in that mine. so should hydrostatic testing have been made, which is again referred in documents, because there is acknowledgement 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 and people downstream as well as drinking water. 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 snow that you should have had hydrostatic 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 the agency violated the endangered species act. weather continue to look at that and talk. the more important thing is, you're absolutely right. if we did something wrong, then you should come after us. and frankly i'm going to take full accountability for that as well. >> again, back to proportionality. my constituents in my rural district face issues with federal agencies coming after them, somebody trying to change their crop land from grazing to wheat field to an orchard field, they have to prepare the soil differently. they can have somebody on their case with large fines. does that seem fair, especially when the people involved, if there's a period in which they make an application and they don't hear back from the federal agency, under the law it says they can proceed, and they come

back after that, say, 90-day period, does that seem fair? they believe they're operating within the law and then they come down upon them? >> sir, i can't speak to any particular instance that i'm unaware of. >> our folks are recall taking a hit on that. i appreciate it. >> thank you, sir. >> time's up. mr. palmer? >> thank you, mr. chairman. ms. mccarthy, thanks for coming today. five months ago, the epa sent toxic sediment into a creek in greensboro, georgia. initially the epa denied but later admitted it funded the cleanup and the development operation that triggered the spill. did you request the department of interior review for that spill? >> i'm not directly aware of it, sir. so i will have to get back to you. >> all right. the record indicates that you didn't.

and it makes me wonder why, after an accident like that, that you didn't stop all of these cleanup efforts, particularly with the gold king mine, after having a spill in georgia just a few months ago. let me ask you this. you've 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 at this point over this? and i think you may have answered that. >> not that i'm aware of. >> and am i correct that you responded earlier that you're continuing to use them as a contractor? >> that is correct. >> also, are you aware that it was reported that the epa complected about 15,000 tons of in 2005 and dumped them down the shaft of the new macado 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? >> i'm 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've brought this to your attention before about some of the heavy-handed tactics the epa engages in. chairman bishop earlier talked about the fact that the epa has clearly violated federal law, that it doesn't matter that the epa didn't realize that they violated the law, or that the epa didn't intend to violate the law, or that the epa was just trying to do its job when it violated the law. that doesn't matter. and i'm saying it doesn't matter in the context of how you've treated other folks.

i think mr. gosar brought up the case of edward hanesak. he was sentenced to six months of prison for discharging oil into a stream. he was convicted despite the fact that he wasn't present when the accident occurred. a poultry farmer in west virginia, the epa spotted some feathers and droppings near her chick houseen houses. i think most people who have been around chicken farms would expect to see that. they told her she would need to get a permit or find $37,000 a day. true to her native west virginia spirit, she's fighting it. andy johnson from wyoming has been mentioned. mr. johnson built a stock pond for horses and cattle on his 8-acre property. a stock pond that a former army

corps of engineers enforcement officer inspected and concluded that it provided environmental benefits including a wildlife habitat and that the water flowing out of the pond was cleaner than the water flowing into it. yet he's been find $16 million. this is just a small farmer. then you've got the situation with the range resources corporation of texas, a natural gas company, being forced to spend $4.2 million defending itself in 2011, after the epa issued an emergency order. the epa accused range resources of causing or contributing to the contamination of two water wells, and then when it was quickly determined that they didn't 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 range resources and the contamination. you are going to continue on that path and force them to pay

that until you finally relented and gave that up. you also turned over the personal data of 80,000 farmers to environmental groups. i don't understand why you can come before this committee and sit there and say you're sorry for what you've done in the context of how you've 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 can't be ignored that 3 million gallons of acidic heavy metal laden water were released into the animas river, not 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 the rules and regulations that others must adhere to. and quite simply, the epa did

not have those in responsible charged 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 can't 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 about your ability to safeguard the public interest. administrator mccarthy, do you believe the activities conducted at the gold king site would require engineering design work? >> i'm sorry, sir. i don't know whether i'm qualified to answer that question. but i'll certain respond. >> 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 education, training, and experience in the application of special knowledge in the mathematical and engineering sciences to such professionals services or creative work, including consultation, investigation, evaluation, planning, design, and the observation of construction to evaluate compliance with plans and specifications in context with 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, utilities, or any combination or aggregations thereof employed in or devoted to public or private enterprises or uses. again, i'll ask you, do you agree activities conducted at the gold king site would require engineering design work? >> i think i am well aware there was a work plan that involved a significant amount of engineering expertise. what you asked me was the exact

actions at the sight. i'm not prepared to answer that portion of the question. >> so you don't 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. >> -- engineering expertise went into preparing this work plan. >> yes, that's correct. >> colorado law also further goes on to say that it requires that only, only a professional engineer may practice engineering and that all engineering documents, plats, and reports issued in connection with engineering work performed must bear the seal and signature of the colorado licensed professional engineer who is responsible, in charge of, and directly responsible for the engineering work. did a professional engineer design or stamp drawings or the plan for the work being conducted at the gold king site

which resulted in the blowout? >> i'm happy to follow up own that. i can't answer that question now. >> i would think if an engineer did that, if you contracted those services or if you had someone on staff to do that, that you would have those documents with you and say, we followed the procedures that were outlined by a competent professional in charge of this. so far, all i've heard is that you had a project coordinator overseeing work at this site. who is this person? >> i don't have his individual name, sir. >> do you know what their credentials are? >> i don't have his bioin front of me, sir. i do know the work plan itself wasn't developed at the site. it was developed with the state of colorado after significant public input from the manimus - >> those are not the same thing. you should have had a professional design person in charge of, to stamp these plans or drawings -- >> i'm not suggesting that. i am suggesting i can't answer your question at this point.

i'm 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. i think this is unacceptable. i think you're at fault for not having the required design professional in charge of this work. >> see what happens when you have an engineer on the panel? you're right on time. you're recognized for five minutes. >> thank you, my question. it's nice to see you again. i realize this is a difficult hearing, administrator mccarthy, but we all want the same thing. recognize that we don't want to

have these issues going forward. frankly, i personally appreciate epa's attitude about taking full responsibility. but for the 3 million gallons of toxic, i'm sure that everyone has repeated this over and over again, into the animas river and surrounding area. i really want to focus my question on making sure we're as holistic as possible on identifying exactly what the harm is, how we identify and address that harm, and how we assess the long term impacts. specifically, and i hope that president begay from the navajo nation will forgive me for this, because as he spoke in his testimony about the navajo principle of hosho, it's 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 don't deal with actual damage and future damage and make it completely whole, then it can't 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 that's going to be a complicated process, to place a monetary damage from this kind of spill that are more traditional damaged crops, suspended outdoor recreation and tourism. i'm looking at making sure we restore the area to its original aspect, and the potential that it had prior to the still. can you talk to me a little bit about how you're going to identify both the long term impacts that are yet unknown, and about how you're going to encompass this hosho aspect that we're interested in getting full

compensation for in this entire region, for all the states that are affected? >> there's two long term issues that we need to address. and i know time is constrained so i'll try to keep this limited. the sediment issue has been one of the major concerns of president begay and the navajo which we appreciate, because we know that river has not been of high water quality for some time. sediment has been a concern. we have to monitor that closely. we now have a long term concern about that, that we share. and we're developing a plan to do that, that will get input from everybody on, so we address that. but the second long term issue is what happens in the upper animas. we are not close to revolving the challenges associated with the ongoing discharge, which frankly dwarves the spill we have, and we have to address that.

in terms of a technical challenge, one of the challenges that the navajo and southern ute and others have expressed to us is we have ayute -- >> i'm going reclaim my time. there's 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 don't overstep my authority here but for the navaho nation i'm saying monitory aspects and monetary damages related to the long-term impacts and while i completely respect you're looking at the continuation of environmental problems, which is absolutely your job and i want you do that job as effectively as you can, i want everybody made whole and i'm not feeling as confident about that particularly in your plan because i'm running out of time.

i'm going to need you to address how individuals process their claims, what you're going to do to make that a non-painful process. the unemployment rate of the navaho nation is upwards of 42%. people can't wait and wade through a terrible bureaucratic aspect tos process, file and wait for their claims and to use all of our collective offices, i see my colleague here congressman pierce to do the appellate work that i am sure will be necessary to get fair review. and you have a few seconds to assure me we deal that. >> we'll do the best we can. thank you. >> i can still go for seven seconds if you want. i'm kidding, mr. newhouse? thank you, mr. chairman, thank you administrator for being here. one of the risks of being freshman is i'm right down here in the line of fire with you. but i just had one question in light of the chairman's 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. and you've said as much yourself that you will follow this forever 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 accountability in two ways, whether or not we had administrative and management failures or whether we had any criminal concerns that arise out of the independent review. those are two related but separate issues. >> 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, is as much as risk as anything else. so i would hope that we can take you at your word that the accountability aspect of this will be followed to wherever it goes and that we are satisfied that the people that are in charge are helping. >> well, i know we have both the inspector general who looks at these issues and the oversight committee and i expect we'll 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 what about the agency's first actions were? what protocols are for this kind of -- >> the sequence that we expect for the agency or anybody in this situation is first and foremost to protect the folks

that are on the site, to make sure 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 there's a longer-term 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 reimburse them for their experiences. >> can you say twloornt these protocols were all followed and and were there any, just as importantly, that were not followed as well as they should have been? hindsight, i know, is 2020. >> i am not aware that we didn't follow the correct procedures.

i am certainly aware that we could have done better on notification. i think we will have to learn from those lessons and we've already started to do that. we'll learn from whatever doi says about what caused the incident, what was the precipitating factors and what we need to do about it. unfortunately, sometimes you learn from the worst things and this is one of them. >> i would agree with. that thank you, mr. chairman, i yield back my time. >> i have three other members who are not a part of our committees who are here to ask questions. mr. pierce, we'll 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. president begay's testimony says that apparently epa was trying to obtain releases from members so since we've got a difference of opinion, would you declare

here today that any of these forms filled out today and signed maybe unknowingly by members of the navaho nation would be disavoyed and they'd be allowed to resubmit that paperwork? >> those can be changed at any point in time. i am unaware they have been submitted but we have been working to explain how the do that. >> sounds great. also in order to dilute down this bill, 1.3 billion gallons of water dumped that belongs to the navaho nation, are you going to reimburse them? 1.3 billions of gallons of water in new mexico is a big deal. >> i don't want know what you're preferring to, i'm sorry, sir. >> i would expect then for you to look into that and get back with our office that that water was released -- >> oh, the water released at the dam. >> yes. so now you're familiar. >> i didn't know what you were referring to. i am aware that happened? >> will you reimburse the tribe for that? i do not. >> i do not know whether that is something that -- >> you'll follow up and find

out? >> the navaho have not raised that issue with me so i'll find out. >> it would be practical to understand that. also, to chairman bishop's point earlier that we needed everybody on the same panel, evidently you made the assertion that epa helped miami miami shut off the intakes for public water systems? >> i indicated that the notifications -- >> i didn't ask about the notification, i asked about the help. >> that's what i was talking about. >> all right. his comment, secretary flynn's comment was that you weren't involved at fall the decision, that it was done by new mexico and we could prosecute that decision if we had everybody on the same panel together. so the whole idea of accountability. your comments that if anybody is negligent or criminal activity different time, you said any

administrative oversights would be health with? >> that's part of the agreement. >> how long will that investigation take? >> they're anticipating to be completed in october. >> okay, so then my point to the others who maybe distrust that you've actually followed through on that, does the name robert beal or john beal mean anything to you? >> it very much does, sir. >> so he's thrown in jail for three years for bilking the taxpayers out of about a million dollars minimum. has any money been received back if him? >> did you all as an agency claw back money he fraudulently filed for? >> we have and we continue to look at that. >> and so there were people in the agency who had to sign leave, travel, salary bonuses, all that sort of stuff, right? >> i'm aware of that, yes. >> has anybody been held accountable for that? >> processes in place.

if there's additional we need to do -- >> no, are any of the supervisors that signed off for him coming to work or him going place that he didn't actually go traveling first class has anybody been held accountable far? >> there was a process in place -- >> has anyone been held accountable far? are any of the management people who signed those things knowing that he was at work or not knowing? because it would be -- again, going back to this situation, that oversight would be negligence, wouldn't it? if somebody signed a leave form or performance bonus. >> i don't know what the exact term is, sir, but that is absolutely an administrative responsibility for us. >> and yet no one had been held accountable to date so people on this committee have a distrust that your study, which is going to be complete, you said, in october, will actually result in anyone doing anything -- have any consequence to them at all. and now you were his direct supervisor for four years.

nine through 12, three years, four, something. >> yes, sir. >> and so, again, if people here have a little difficulty in believing you're going to actually follow through on this issue, they look at that issue and say the highest-paid employee of the epa simply gets to skate for 20 years not showing up for work and no one is held accountable, no one. >> actually, i was the person who held john beal accountable. i was the one that referred this and i -- >> i understand you were the one who discovered it but you also signed off fraudulent payments to him that he did not deserve and nothing has happened to you or anyone else. thank you, mr. chairman. >> thank you, mr. tip on the? >> thank you, mr. chairman. mrs. mccarthy, you recently stated on august 13 that we're going to be fully accountable for this in a transparent way. >> yes, sir. >> that was your quote. jus