[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]





H.R. 4817, A BILL TO AMEND THE SURFACE MINING CONTROL AND RECLAMATION 
ACT OF 1977 TO CLARIFY THAT UNCERTIFIED STATES AND INDIAN TRIBES HAVE 
THE AUTHORITY TO USE CERTAIN PAYMENTS FOR CERTAIN NON-COAL RECLAMATION 
                               PROJECTS.

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

                          LEGISLATIVE HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                      Thursday, September 23, 2010

                               __________

                           Serial No. 111-65

                               __________

       Printed for the use of the Committee on Natural Resources








  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov





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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey       Jeff Flake, Arizona
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam          Louie Gohmert, Texas
Jim Costa, California                Rob Bishop, Utah
Dan Boren, Oklahoma                  Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas   Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico       Adrian Smith, Nebraska
Ben Ray Lujan, New Mexico            Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                


              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                    JIM COSTA, California, Chairman
           DOUG LAMBORN, Colorado, Ranking Republican Member

Eni F.H. Faleomavaega, American      Don Young, Alaska
    Samoa                            Louie Gohmert, Texas
Rush D. Holt, New Jersey             John Fleming, Louisiana
Dan Boren, Oklahoma                  Jason Chaffetz, Utah
Gregorio Sablan, Northern Marianas   Cynthia M. Lummis, Wyoming
Martin T. Heinrich, New Mexico       Doc Hastings, Washington, ex 
Edward J. Markey, Massachusetts          officio
Maurice D. Hinchey, New York
John P. Sarbanes, Maryland
Niki Tsongas, Massachusetts
Nick J. Rahall, II, West Virginia, 
    ex officio
                                 ------                                















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, September 23, 2010.....................     1

Statement of Members:
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................     1
        Prepared statement of....................................     4
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Antonio, Hon. John E., Sr., Governor, Pueblo of Laguna.......    21
        Prepared statement of....................................    23
    Owens, Glenda, Deputy Director, Office of Surface Mining 
      Reclamation and Enforcement, U.S. Department of the 
      Interior...................................................    11
        Prepared statement of....................................    12
    Pineda, Loretta, Director, Division of Reclamation, Mining 
      and Safety, Colorado Department of Natural Resources.......    15
        Prepared statement of....................................    17
    Teague, Hon. Harry, a Representative in Congress from the 
      State of New Mexico........................................     7
        Prepared statement of....................................     8

Additional materials supplied:
    List of documents retained in the Committee's official files.    33

 
 LEGISLATIVE HEARING ON H.R. 4817, A BILL TO AMEND THE SURFACE MINING 
CONTROL AND RECLAMATION ACT OF 1977 TO CLARIFY THAT UNCERTIFIED STATES 
   AND INDIAN TRIBES HAVE THE AUTHORITY TO USE CERTAIN PAYMENTS FOR 
                 CERTAIN NON-COAL RECLAMATION PROJECTS.

                              ----------                              


                      Thursday, September 23, 2010

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:05 a.m. in 
Room 1334, Longworth House Office Building, Hon. Jim Costa 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Costa, Heinrich, and Lamborn.

STATEMENT OF HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Mr. Costa. The Subcommittee on Energy and Mineral Resources 
will now come to order. Our subject matter this morning is H.R. 
4817, a bill that would amend the Surface Mining Control and 
Reclamation Act of 1977 and to clarify that uncertified states 
and Indian tribes have authority to use certain payments for 
certain non-coal reclamation projects. This is an issue that 
has been around for awhile. It affects many states, 
particularly in the West, as we try to deal with reclamation 
efforts.
    There is, I think, bipartisan support to try to make the 
changes that are reflected in this legislation. It is not the 
first time such legislation has been introduced. What the Chair 
will do this morning is first hear a fellow colleague, a 
witness, Congressman Teague from New Mexico, who will speak on 
the measure that has been introduced, and then we have a panel, 
and we will follow the same process that we always do with both 
the first witness and the other panel members, five minutes for 
comments, and then we will follow up with questions or comments 
by members of the Subcommittee.
    Before we begin with our first witness, our colleague, who 
we are pleased to have here, I would be remiss if I didn't 
appropriately recognize two people that are no longer going to 
be with us. I don't know whether or not this is the last 
Subcommittee hearing that we will have in this Congress. It 
quite possibly could be, and the fact is that all the members 
of this Subcommittee, all the members of the Congress, work 
very hard, but we work very hard with our staff, and the staff 
of the committees and subcommittees really, I think, make up 
the heart and soul of any legislative body.
    Two individuals here that I have had the pleasure to work 
with since I came to Congress have done just a tremendous job 
in terms of their passion, in terms of their hard work, in 
terms of their tenacity for detail and, probably most 
importantly, I guess sometimes is their propensity to put up 
with people like myself. I am talking about Members of 
Congress. It is clearly important that we recognize Deborah 
Lanzone, who sent out a notice a few weeks ago that she was 
going to make this her swan song.
    I guess, Deborah, I wore out your patience, but the fact is 
you have worked for a number of Congresses on this Committee. 
You have also worked in previous administrations in the 
Department of the Interior. I know how much you care about good 
public policy. I know how focused you are in trying to work in 
a bipartisan manner. I know that you have always, always tried 
to put forth good public policy in an objective way. I have 
really appreciated that hard work even when, on occasion, we 
have disagreed; and I have learned and I have grown as a result 
of your hard work and your input. I know other members of the 
Subcommittee and the full Committee have as well.
    Wendy, you too are departing. Deborah Lanzone and Wendy Van 
Asselt are part of a team that has allowed this Chair and this 
Subcommittee to work at a level that I think reflects the best 
that we have in Congress, so Steve, I don't know what we are 
going to do without these two people when they are gone, but we 
are in trouble, not that any of us are replaceable. The fact 
is, Wendy and Deborah, on behalf of members of the 
Subcommittee, I want to thank you for a job well done.
    I want to thank you for always being there for us, and on 
behalf of the Subcommittee, I want to wish both of you the very 
best, you and your families and friends, as you pursue future 
endeavors. I just ask that you don't forget us, that you come 
by and you continue to bless us with your goodwill and your 
hard work. I wish you every success in your future endeavors, 
clearly, and I will defer to the Ranking Member here at this 
time.
    Mr. Lamborn. Mr. Chairman, I want to, before I say anything 
else, echo your remarks about the gratitude of the members of 
this Committee for the service of Ms. Lanzone. When it is done 
well, many Americans don't know the service given by the staff 
here on Capitol Hill. The personnel and Committee staff often 
work long hours with little of the recognition that we receive 
as Members for their hard work. I know that because of her 
tenure on the Hill and the challenges this Committee has faced 
over the last year, that she has served your members and this 
Committee well.
    In closing, I would like to share one quick story. On 
Inauguration morning, before having coffee at the White House, 
First Lady Michelle Obama handed Laura Bush a present. Inside 
was a leather-bound journal inscribed with a quote from Louis 
L'Amour, the great western writer, and the quote said, ``There 
will come a time when you believe everything is finished, yet 
that will be the beginning,'' so I would like to extend thanks 
to her for her service on behalf of all the Republican members 
of the Committee, and I wish her the very best on her new 
beginning.
    [Applause.]
    Mr. Lamborn. And I would like to thank Wendy for all of her 
hard work for this Committee and wish her the best of luck in 
her new adventures in Seattle, Washington.
    Mr. Costa. Thank you, Ranking Member Lamborn, for those 
kind words. Deborah, Wendy, we thank you very much. If Jim Zoia 
hadn't been in your way, who knows what--I am sorry, Jim.
    [Laughter.]
    Mr. Costa. We do really appreciate the good work that 
Deborah and Wendy have done, and we are going to miss you. That 
is for sure, so thank you so very much. Doug and I don't have a 
gold watch to give, but if we did, it is there in spirit and 
heart and clearly we know you are going to continue to do good 
work. Thank you so much really.
    Let me begin now with the opening statement, and then the 
Ranking Member will make his opening statement, and then we 
will get to the order of the day with Mr. Teague's comments on 
the measure.
    As I said at the outset, we are here about an important 
measure that involves public health and safety, and that is the 
cleanup of abandoned mines. Mr. Teague introduced this measure 
with Mr. Lujan and Mr. Heinrich, who are part of the 
Subcommittee. Mr. Teague will explain the bill. Let me make a 
few remarks quickly. This isn't the first time that the 
Subcommittee has examined the problems with abandoned mines. We 
held hearings here in Washington and in Sacramento within the 
last several years. A former colleague of ours had a bill that 
addressed this.
    In 2008, the Government Accountability Office estimated 
that there are across the country 161,000 abandoned hard rock 
mines in the West. In California, we have about 40,000 of them. 
I mean, it goes all the way back to the gold rush, of course, 
and the challenge we have is that there aren't a lot of 
resources to clean up these mines. That is the bottom line, and 
that is why funds were provided for states and Indian tribes by 
the Department of the Interior's Office of Surface Mining and 
Reclamation Enforcement that have been important, but like a 
lot of efforts, it has not been enough.
    The Office of Surface Mining, under the amendments of the 
Surface Mining Control and Reclamation Act of 1977, can provide 
grants and clean up sites for hard rock sites as well as coal 
mining sites. Historically, the Office of Surface Mining has 
provided more than $3 billion since that time to clean up 
environmental hazards that have affected over 300,000 acres. 
Eleven states and tribes have used roughly $200 million of 
those funds to clean up hard rock sites across the country.
    However, in recent years, the Department of the Interior 
policies have restricted the use of some of the abandoned mine 
land monies asserting that they need to be directed only for 
coal site reclamation. I will not argue that cleaning up those 
coal site mines is important, but we are trying to get some 
fairness. We are trying to get some equity here. H.R. 4817 
would ensure that uncertified states can use all of the grants 
and payments they receive for either coal site reclamation or 
to clean up hazard sites for non-coal sites.
    This bill doesn't change or increase the amount of funding 
distributed to states. That remains the same were this measure 
to become law. I think the Subcommittee has consistently heard 
testimony that one of the most important things we can do to 
protect the public from abandoned mines is to be smart about 
how we prioritize the cleanup. That is one of the things I have 
argued about in California. While we have 40,000 sites in 
California, they don't all pose the same hazard, and we need to 
do a better job in prioritizing that.
    Some obviously are far more hazardous than others, and 
since we don't have enough money to do all the cleanup, it is 
just common sense, as my mother used to say, that we 
prioritize, that we get the best bang for our dollar, and I 
think that is what this bill is trying to do. I look forward to 
hearing the testimony from our witnesses, Mr. Teague, and then 
the second panel. With that, I will defer to the Ranking 
Member, Mr. Lamborn from Colorado, for any statement he may 
have.
    [The prepared statement of Chairman Costa follows:]

            Statement of The Honorable Jim Costa, Chairman, 
              Subcommittee on Energy and Mineral Resources

    Today we will consider a bill that addresses an important public 
health and safety issue: the cleanup of abandoned mines. My colleague, 
Mr. Teague, introduced H.R. 4817 with Mr. Lujan and Mr. Heinrich; I'll 
let Mr. Teague explain the bill, including its importance to his fine 
state of New Mexico. However, I do want to make a few remarks, drawing 
on my experience chairing this Subcommittee's examination of abandoned 
mine problems at hearings here in Washington and in Sacramento. In 
2008, the Government Accountability Office estimated that there are at 
least 161,000 abandoned hardrock mines in the West. California alone 
has 40,000 sites that threaten public health and safety. There are very 
few sources of funding for the cleanup of those dangerous hardrock 
mines. That's why the funds provided to States and Indian tribes by the 
Department of the Interior's Office of Surface Mining Reclamation and 
Enforcement have been so important. The Office of Surface Mining, under 
amendments to the Surface Mining Control and Reclamation Act of 1977, 
can provide grants to clean up sites used for hardrock sites as well as 
coal mining sites. Historically, the Office of Surface Mining has 
provided more than $3 billion to eliminate safety and environmental 
hazards on more than 300,000 acres. 11 states and several tribes have 
used roughly $200 million of those funds to clean up hardrock sites. 
However, in recent years, Department of Interior policies have 
restricted use of some Abandoned Mine Land monies, asserting they must 
be used only for coal site reclamation. H.R. 4817 would ensure that 
uncertified states can use all the AML grants and payments they receive 
for either coal site reclamation or to clean up hazardous non-coal 
sites. This bill does not change or increase the amount of funding 
distributed to the States. This Subcommittee has consistently heard 
testimony that one of the most important things we can do to protect 
the public from abandoned mines is to be smart about prioritizing sites 
for cleanup, and to direct limited resources to those places of 
greatest need--regardless of what mineral was mined at the site. I 
think that's what this bill is trying to do. That seems like common 
sense. I look forward to hearing from our witnesses on the details of 
this bill.
                                 ______
                                 

 STATEMENT OF HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF COLORADO

    Mr. Lamborn. Thank you, Mr. Chairman, and I want to thank 
you for holding this hearing today. Before we focus on today's 
hearing, I would like to take just a moment to raise a concern 
about the erosion of this Committee's jurisdiction. As you 
know, Mr. Chairman, this Subcommittee holds jurisdiction over 
the nation's energy and mineral resources and the majority of 
the programs under the United States Geological Survey. Today, 
the Science and Technology Committee will be marking up 
legislation addressing the serious issue of rare earth mineral 
availability, manufacture of the products utilizing rare earth 
minerals, and fostering domestic research into new uses for 
rare earth minerals.
    Unfortunately, this Committee hasn't had a chance to 
address this issue during this Congress. However, the fact that 
we haven't addressed this issue doesn't mean that other 
committees have free rein to abscond with our areas of 
jurisdiction. I am concerned that the Science Committee bill 
being debated today establishes within the Department of Energy 
a new center whose duties are clearly duplicative of the 
operations of the U.S. Geological Survey.
    I would hope that before the Science Committee bill reaches 
the House Floor that this Committee will assert its 
jurisdiction and have an opportunity to examine this 
duplication, direct the valuable resources of the American 
people to the agencies with real expertise and protect the 
jurisdiction of this Committee. Now, that issue stated, today's 
hearing will examine H.R. 4817 introduced by our colleague, 
Representative Teague of New Mexico.
    This bill clarifies the original Congressional intent of 
Section 409 of the Surface Mining Control and Reclamation Act 
that allows states and tribes to use SMCRA AML funds to address 
high priority coal and non-coal AML sites. The Department of 
the Interior reinterpreted the intent of Congress for allowable 
uses of the Section 409 permits through a Solicitor's Opinion 
and their Final Rule for the 2006 amendments to SMCRA to 
prohibit the use of Section 409 and prior balance replacement 
funds for non-coal projects.
    That is why I wish that this Committee could have addressed 
this legislation in the 110th Congress when it was H.R. 5661 
introduced by the former Ranking Member of this Committee, 
Representative Steve Pearce of New Mexico. In some ways, I wish 
this Committee would have addressed broader, responsible mining 
law reform for hard rock cleanup like H.R. 3201, which I 
introduced to address mining law reform, or H.R. 3203, which I 
introduced to provide Good Samaritan protections for the 
cleanup of abandoned mines.
    The Good Samaritan legislation, in particular, would have 
provided an incentive for private companies, municipalities and 
non-profit organizations to work on the cleanup of abandoned 
hard rock mines creating private-sector jobs while improving 
the quality of the environment and addressing safety issues 
associated with abandoned mine lands. Yet, it wasn't heard 
before this Committee. While this legislation before the 
Committee today may be a piece of the puzzle in addressing our 
non-coal abandoned mine land issues in the West, it also gives 
a reminder of the commitment of this Administration to 
stripping the funding from certified states and tribes.
    I know we will hear in testimony again today that this 
Administration believes it is more important to eliminate the 
funding to the certified states rather than honor the hard-
fought compromise reached in 2006 that requires the Federal 
Government to send the certified states their 50 percent share 
of the AML fee levied on coal production. It is the states' 
money, and they should be able to use it as they see fit. I 
will close, Mr. Chairman, by saying that this is likely our 
last hearing of this Congress. I want to thank you for your 
leadership over the last two years.
    Although we have had a few disagreements, I have enjoyed 
working together in addressing one of the most challenging 
years in oil and gas policy in a generation. Once again, I want 
to thank you for holding this hearing. I welcome our witnesses, 
and I look forward to their testimony. Mr. Chairman, I yield 
back.
    [The prepared statement of Mr. Lamborn follows:]

     Statement of The Honorable Doug Lamborn, Ranking Republican, 
              Subcommittee on Energy and Mineral Resources

    Thank you, Mr. Chairman; I want to thank you for holding this 
hearing today.
RARE EARTH'S
    Before we focus on today's hearing I would like to take a second to 
raise a concern about the erosion of this Committee's jurisdiction. As 
you know Mr. Chairman, this Subcommittee holds jurisdiction over the 
Nation's energy and mineral resources and the majority of the programs 
under the United States Geological Survey. Today, the Science and 
Technology Committee will be marking up legislation addressing the 
serious issue of rare earth mineral availability, manufacture of the 
products utilizing rare earth minerals and fostering domestic research 
into new uses of rare earth minerals. Unfortunately, this committee 
hasn't had a chance to address this issue during this Congress, 
however, the fact that we haven't addressed the issue doesn't mean that 
other Committee's have free reign to abscond with our areas of 
jurisdiction.
    I am concerned that the Science Committee bill being debated today 
establishes within the Department of Energy a new Center whose duties 
are clearly duplicative of the operations of the U.S. Geological 
Survey. I would hope that before the Science Committee bill reaches the 
House floor this committee will assert their jurisdiction and have an 
opportunity to examine this duplication, direct the valuable resources 
of the American people to the agencies with real expertise, and protect 
the jurisdiction of this Committee.
LEGISLATION HISTORY
    That issue settled, today's hearing will examine H.R. 4817, 
introduced by our colleague Rep. Teague of New Mexico. This bill 
clarifies the original Congressional intent of section 409 of the 
Surface Mining Control and Reclamation Act (SMCRA) that allows states 
and tribes to use SMCRA AML funds to address high priority coal and 
non-coal AML sites. DOI reinterpreted the intent of Congress for 
allowable uses of the section 409 permits through a Solicitor's Opinion 
and their final Rule for the 2006 amendments to SMCRA to prohibit the 
use of section 409 and ``prior balance replacement'' funds for non-coal 
projects, that is why I wish this Committee could have addressed this 
legislation in the 110th Congress when it was H.R. 5661, introduced by 
the former Ranking Member of this Committee, Rep. Steve Pearce of New 
Mexico.
    In some ways, I wish this Committee would have addressed broader 
responsible mining law reform for hard rock clean up like H.R. 3201 
which I introduced to address mining law reform. Or H.R. 3203, which I 
introduced, to provide ``Good Samaritan'' protections for the cleanup 
of abandoned mines. The good sam legislation in particular would have 
provided an incentive for private companies, municipalities and non-
profit organizations to work on the clean-up of abandoned hard rock 
mines creating private sector jobs while improving the quality of the 
environment and addressing safety issues associated with abandoned 
mined lands and yet it wasn't heard before this committee.
    While this legislation before the Committee today may be a piece of 
the puzzle in addressing our non-coal abandoned mine land issues in the 
west. It also gives us a reminder of the commitment of this 
administration to stripping the funding away from certified states and 
tribes. I know we will hear in testimony again today that this 
administration believes it is more important to eliminate the funding 
to the certified states rather than honor the hard fought compromise 
reached in 2006 that requires the federal government to send the 
certified states their 50 percent share of the AML fee levied on coal 
production. It is the states' money and they should be able to use it 
as they see fit..
CLOSE
    I will close Mr. Chairman by saying that as this is likely our last 
hearing of this Congress, I want to thank you for your leadership over 
the last two years although we have had our disagreements, I have 
enjoyed working together in addressing one of the most challenging 
years in oil and gas policy in a generation.
    Once again, I want to thank you for holding this hearing, I welcome 
our witnesses and I look forward to hearing their testimony. Mr. 
Chairman I yield back.
                                 ______
                                 
    Mr. Costa. Thank you very much, gentleman from Colorado. I 
appreciate your comments and the good work that you have done 
as a member of the Subcommittee, the Ranking Member and the 
efforts that you have made toward bipartisan cooperation. You 
are correct. It has been a difficult year in our country for 
resource-related issues. Let us begin now with our first 
witness. We would like to recognize The Honorable Harry Teague 
from the great State of New Mexico, who is the sponsor of this 
legislation, for his testimony.
    The Chairman is somewhat flexible, but we would still like 
to apply the same rules, Congressman Teague, to your five-
minute statement, and then we will go to any comments or 
questions after that. You know the rules. Thank you.

 STATEMENT OF HON. HARRY TEAGUE, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF NEW MEXICO

    Mr. Teague. Thank you. Thank you, Chairman Costa, and 
members of the Committee for holding this important hearing 
today on H.R. 4817, legislation to make Surface Mining Controls 
and Reclamation Act, or SMCRA, funding eligible for the 
remediation of old uranium mines and mills in New Mexico and 
other states. I am proud to introduce this bill with Senator 
Jeff Bingaman and my New Mexico House colleagues, Congressmen 
Lujan and Heinrich, both members of this Committee.
    As you know, Department of the Interior regulations 
affected after passage of the 2006 amendments to SMCRA, 
currently restrict New Mexico from using the SMCRA funding for 
uranium site cleanup. According to the current interpretation 
of the law, SMCRA is only available for coal site cleanup in 
New Mexico. New Mexico disagrees with this interpretation and 
would like to use the SMCRA funds for uranium cleanup, which is 
a bigger need in our state.
    Despite the efforts of our delegation, the Department of 
the Interior has refused to allow for more flexibility in the 
use of SMCRA funds for states that aren't certified as having 
completed coal site cleanup. Here are the facts about my bill: 
New Mexico currently has $14.5 million in SMCRA funds 
available; 137 uranium sites in New Mexico need remediation; 
the cleanup of the sites would create on average 10 jobs per 
site. This is a common sense win-win bill for my State of New 
Mexico, would address the legacy of contamination at sites 
around New Mexico, and would create over 1,000 good jobs in 
rural New Mexico doing it.
    Passing H.R. 4817 will help people in New Mexico, in Cibola 
County and McKinley County, and across the state. That is why I 
am proud to join with the delegation to bring this bill 
forward. It is the right thing to do for the people that we 
represent. My bill is supported by the New Mexico State 
Legislature, New Mexico Mining Association, the City of Grants, 
McKinley County Chamber of Commerce, the Association of 
Commerce and Energy, the Village of Milan and McKinley County, 
among many others.
    I also look forward to hearing the testimony of my friend, 
Governor Antonio of the Laguna Pueblo. I thank the Committee 
for their attention and urge them to bring this legislation to 
the House Floor for a vote as soon as possible. Thank you.
    [The prepared statement of Mr. Teague follows:]

 Statement of The Honorable Harry Teague, a Representative in Congress 
                      from the State of New Mexico

    Thank you Chairman Rahall, Chairman Costa, and members of the 
committee for holding this important hearing on H.R. 4817, legislation 
to make Surface Mining Control and Reclamation Act, or SMCRA, funding 
eligible for the remediation of old uranium mines and mills in New 
Mexico and other states. I was proud to introduce this bill with 
Senator Jeff Bingaman and my New Mexico House colleagues, Congressmen 
Lujan and Heinrich, both members of this committee.
    As you know, Department of Interior regulations affected after 
passage of the 2006 amendments to SMCRA currently restrict New Mexico 
from using the SMCRA funding for uranium site clean-up. According to 
current interpretation of the law, SMCRA is only available for coal 
site clean-up in New Mexico.
    New Mexico disagrees with this interpretation and would like to use 
the SMCRA funds for uranium clean up, which is a bigger need in our 
state. Despite the efforts of our delegation, the Department of 
Interior has refused to allow for more flexibility in the use of SMCRA 
funds for states that aren't certified as having completed coal site 
cleanup.
    Here are the facts about my bill.
          New Mexico currently has $14.5 million in SMCRA funds 
        available
          137 uranium sites in New Mexico need remediation
          The cleanup of the sites would create on-average 10 
        jobs per site.
    This is a common-sense, win-win bill for my state of New Mexico. We 
address the legacy of contamination at sites around New Mexico. And we 
create over 1,000 good jobs in rural New Mexico doing it.
    Passing H.R. 4817 will help people in New Mexico, in Cibola County 
and McKinley County and across the state. That's why I'm proud to join 
with the delegation bring this bill forward: It's the right thing to do 
for the people we represent.
    My bill is supported by the New Mexico State Legislature, the New 
Mexico Mining Association, the City of Grants, the McKinley County 
Chamber of Commerce, the Association of Commerce and Industry, the 
Village of Milan, and McKinley County, among many others.
    I also look forward to hearing the testimony of my friend Governor 
Antonio of the Laguna Pueblo.
    I thank the committee for their attention and urge them to bring 
this legislation to the House floor for a vote as soon as possible.
                                 ______
                                 
    Mr. Costa. Very impressive, Congressman Teague. I was 
obviously going to give you some flexibility within the five-
minute rule, but I appreciate your concise testimony and to the 
point. Let me just ask a general question and some other 
members have others. Of course, we have our other panel to get 
to. In New Mexico, as you stated, there is a particular focus, 
and I know Congressman Pearce at the time had informed me of 
that as well with uranium.
    Uranium was a very important and still is a vital mineral 
to our defense and energy needs in this country, and New Mexico 
has a large uranium source in that. In California, as I noted, 
we have 40,000 abandoned mines, a lot go back to the gold rush 
era, but they vary. Has New Mexico taken, and with your 
delegation and Senator Bingaman, an effort to prioritize how 
that cleanup is?
    I guess I am trying to understand because a lot of it was a 
part of our energy but also our strategic needs for national 
defense, where the role and the responsibility of the Federal 
Government is on cleanup. I mean, is there a nexus there? Is it 
all just in the hands of New Mexico, or are some of these 
cleanup sites still the responsibility of the Federal 
Government? I guess I am trying to understand how that 
prioritization thing has been developed within your state.
    Mr. Teague. No, sir, Mr. Chairman. I think you stated it 
very well. I mean, I know that with California having 40,000 to 
the 137 that we have don't seem like very many, but it really 
is a big problem in those 137 sites, but also as you said, each 
site poses a different level of danger, and there has been some 
prioritizing of what needs to be done where. I personally think 
that for the energy needs of our country going forward that we 
are going to need the uranium to create electricity with 
nuclear energy.
    I think before we can move forward in these areas with 
that, I think we are going to have to separate the legacy 
problems that we have at these 137 sites from any new business 
that we are trying to do in the future, but it is extremely 
important, and I think it is the U.S. government's 
responsibility to clean these 137 sites.
    Mr. Costa. So you are saying then in all 137 cases in New 
Mexico, you believe it is the Federal Government's 
responsibility to pursue the cleanup?
    Mr. Teague. I believe that these should offer the 
assistance all the way through, and of the 137, as you said 
about your 40,000, some of them don't pose that much risk. They 
are going to be minor to clean up, but I do think that we need 
the support and the help of the Federal Government to clean 
them up, yes, sir.
    Mr. Costa. I want to defer to the gentleman here first. Did 
you have a point of order?
    Mr. Heinrich. I just wanted to ask to return to that when 
he is done with his testimony because I want to add a few 
things to what the Congressman from southern New Mexico said.
    Mr. Costa. Sure. OK. I will defer to the Ranking Member 
here, and then we will go through the regular order. Mr. 
Lamborn?
    Mr. Lamborn. Thank you, Mr. Chairman. This won't take long. 
You have done a good job of explaining the bill, so I don't 
have any questions at this point, and I will look forward to 
further testimony through the rest of the morning. Thank you 
for being here.
    Mr. Teague. Thank you.
    Mr. Costa. Thank you. The gentleman from New Mexico, a co-
sponsor of the measure, Mr. Heinrich?
    Mr. Heinrich. Chairman, first I want to thank my colleague 
for his leadership on this. This has been something that the 
State obviously has been working on for a long time, members of 
the Legislature, people like Congressman Teague and his 
predecessor, but that whole issue of who is responsible I think 
is something that has never been adequately addressed in a way 
that is meaningful for the communities in these areas.
    There are a number of different kinds of mines. There are 
those where the uranium was mined directly for the government 
as part of the Cold War effort.
    Mr. Costa. Right. And that was the point that my question 
was to, and I was trying to get some clarity in those 
instances.
    Mr. Heinrich. Of those, there is typically a direct line of 
DOD responsibility. However, there is typically no money for 
the cleanup even though the responsibility is legally there.
    Mr. Costa. And there is no debate on that point that it is 
the responsibility of the Department of Defense for cleanup 
purposes?
    Mr. Heinrich. I believe that is correct. Then, there are 
other mine sites where the uranium was mined for the Cold War 
efforts, but mined by a private company and then sold to the 
government. In those cases, the legal responsibility under 
current law does not necessarily fall on the U.S. Government 
even though the mining operations were for the purpose of 
supporting our strategic arms stockpile, and then there are 
private mine sites where the uranium was mined and then sold to 
the private market for the purpose of power generation, so 
there are sort of three different categories there.
    Mr. Costa. Categories.
    Mr. Heinrich. And there are typically in some cases of the 
third, there are responsible parties who the state is pursuing 
to clean those things up. The difficulty is oftentimes in that 
second category where there were private companies at the time 
doing the mining, oftentimes they are long gone, but the 
impacts to the communities are still there, and I think that is 
why it is so important to take this approach of allowing the 
SMCRA funds to be able to be used at the discretion of the 
states on higher-priority sites where there may be no legal 
responsible party that can be pursued at this time.
    Mr. Costa. Are you familiar, I guess it may be a question 
to our second panel, but of the efforts of the prioritization 
that has taken place in those three categories based upon risk 
assessment, risk management?
    Mr. Heinrich. I know that the Environment Department 
monitors and prioritizes hard rock sites across the state. They 
do that oftentimes on the basis of both public health and the 
exposure to particularly ground and surface water and that 
there are a handful of mine sites, a few hard rock in the 
northern part of the state that are prioritized quite high, but 
many of their high priority sites have to do with uranium 
because of the potential or real ground water contamination and 
the potential for public health issues with the wells that are 
exposed to that groundwater contamination.
    Mr. Costa. Mr. Teague, anything you would like to add?
    Mr. Teague. Yes, a couple of things. The State of New 
Mexico is in the process of prioritizing all of them and 
ranking them in their need, but they don't have that completed 
yet, but the New Mexico Environmental Department is in the 
process of doing that. One other thing I would like to say, and 
I think everybody knows because my colleague, Congressman 
Heinrich, did a good job of explaining the different ones, but 
really what we have is we have a situation where this uranium 
was needed for the United States to win the Cold War with the 
Soviet Union and Cibola and McKinley Counties of New Mexico 
made some pretty good sacrifices to help our country.
    I don't think that we should ask them to continue to 
sacrifice. We should clean their sites and their water up.
    Mr. Costa. Very good. All right. You have done a good job 
on your explanation of the bill. The members of the Committee 
have had a chance to make comments, and let us proceed now with 
the next panel. Hearing no opposition, we will grant Mr. Teague 
the opportunity to sit in here with the Subcommittee if you 
choose to do that. All right. Hearing no opposition, you can 
come up here and grab a seat.
    Our second panel, we have three witnesses: Glenda Owens, 
the Deputy Director of the Office of Surface Mining and 
Reclamation and Enforcement; Ms. Loretta Pineda, the Director 
of the Division of Reclamation and Mining and Safety of 
Colorado Department of Natural Resources from Congressman 
Lamborn's state; and The Honorable John Antonio, Governor of 
the Pueblo Laguna, is that correct? Please, three witnesses, 
come forward for your testimony.
    I suspect all of you in various ways have testified before. 
For those of you who are not familiar with the rules here of 
the Subcommittee and Natural Resources I guess in front of the 
center witness there is a little box there that has three 
lights on it, and when I recognize you, it will be green, and 
it will remain green for four minutes, and then on the fifth 
minute, it will turn yellow, and at the end of that minute, it 
will turn red, and then your chair disappears.
    [Laughter.]
    Mr. Costa. No, we don't do that, but I like to say that 
just to kind of get you relaxed, but we do appreciate, 
witnesses, if you have written testimony, and it exceeds five 
minutes, please for the sake of the Subcommittee and the staff, 
we can submit that and summarize your comments within the five 
minutes, and if your written statement is within five minutes, 
and you feel more comfortable reading it, that is fine as well, 
so we would like to begin with our first witness that the Chair 
now recognizes Ms. Glenda Owens for your testimony, and would 
you please begin? Is your microphone on there?

 STATEMENT OF GLENDA OWENS, DEPUTY DIRECTOR, OFFICE OF SURFACE 
               MINING RECLAMATION AND ENFORCEMENT

    Ms. Owens. Is that better?
    Mr. Costa. Yes, that is better. You might bring it a little 
closer to you. We want to hear you.
    Ms. Owens. Good morning, Chairman Costa, and members of the 
Subcommittee, and thank you for the invitation to testify on 
behalf of the Office of Surface Mining Reclamation and 
Enforcement regarding H.R. 4817. We look forward to working 
with you on matters relating to the Surface Mining Control and 
Reclamation Act of 1977. While we share the concern about non-
coal abandoned mine sites, we cannot support H.R. 4817 because 
it is inconsistent with the Administration's goal of ensuring 
expeditious coal reclamation of high priority abandoned coal 
sites before the reclamation fee terminates in 2021.
    Through SMCRA, Congress established OSM for two basic 
purposes: First, to ensure that the nation's coal mines operate 
in a manner that protects citizens and the environment during 
mining and to restore the land to beneficial use following 
mining; second, to implement an abandoned mine land program to 
address the hazards and environmental degradation created by 
two centuries of weakly regulated coal mining that occurred 
prior to SMCRA's enactment.
    Title IV of SMCRA created an AML reclamation program funded 
by a fee assessed on each ton of coal produced. The fees 
collected have been placed in the Abandoned Mine Reclamation 
Fund. The money has been used primarily to reclaim lands and 
water adversely impacted by coal mining conducted before the 
enactment of SMCRA and to mitigate the adverse impacts of 
mining on individuals and communities. Since 2006, Section 
411[h][1] of SMCRA has precluded uncertified states and tribes 
from using funds that they receive under that section for non-
coal reclamation.
    H.R. 4817 would amend SMCRA to allow uncertified states and 
tribes to use funds received under Section 411[h][1] for 
reclamation activities on non-coal mine sites. The President's 
proposed Fiscal Year 2011 budget in addition to reducing 
spending also proposes to limit the use of AML monies to high-
priority coal reclamation projects. The Department, therefore, 
cannot support H.R. 4817 because it is inconsistent with the 
Fiscal Year 2011 budget request.
    While we recognize the dangers that abandoned hard rock 
mines pose, the current challenging economic conditions, 
coupled with this Administration's commitment to fiscal 
responsibility heighten the need for AML funds to be focused on 
the core objective of high-priority coal reclamation projects. 
However, we share the concern about non-coal abandoned mines 
sites, and OSM would be happy to work with Congress and this 
Committee to explore other options to address abandoned non-
coal mine reclamation problems.
    Thank you for the opportunity to appear before the 
Subcommittee today and testify on this bill. I look forward to 
working with you to ensure that the nation's abandoned mine 
lands are adequately reclaimed.
    [The prepared statement of Ms. Owens follows:]

 Statement of Glenda Owens, Deputy Director, Office of Surface Mining 
      Reclamation and Enforcement, U.S. Department of the Interior

    Mr. Chairman and Members of the Subcommittee, thank you for the 
invitation to testify on behalf of the Office of Surface Mining 
Reclamation and Enforcement (OSM) regarding H.R. 4817. I look forward 
to working with you on matters relating to the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA).
    H.R. 4817 would allow noncertified states and tribes to use certain 
SMCRA payments for non-coal reclamation; while the President's Budget 
proposed to limit SMCRA payments to high priority coal sites. While we 
recognize the importance of addressing hardrock mine hazards, we cannot 
support this bill because it is inconsistent with the President's 
Budget.
    The FY 2011 President's Budget includes a proposal to focus AML 
funds on the high-priority coal reclamation sites in order to ensure 
that the most hazardous issues can be addressed before the AML fee 
expires. In addition to terminating unrestricted payments to certified 
states and tribes, the proposal will require all noncertified states to 
use their funding only for high priority coal reclamation projects.
Background
    Through SMCRA, Congress established OSM for two basic purposes. 
First, to ensure that the Nation's coal mines operate in a manner that 
protects citizens and the environment during mining operations and to 
restore the land to beneficial use following mining. Second, to 
implement an Abandoned Mine Land (AML) program to address the hazards 
and environmental degradation created by two centuries of weakly 
regulated coal mining that occurred before SMCRA's enactment.
    Title IV of SMCRA created an AML reclamation program funded by a 
reclamation fee assessed on each ton of coal produced. The fees 
collected have been placed in the Abandoned Mine Reclamation Fund 
(Fund). OSM, either directly or through grants to States and Indian 
tribes with approved AML reclamation plans under SMCRA, has been using 
the Fund primarily to reclaim lands and waters adversely impacted by 
coal mining conducted before the enactment of SMCRA and to mitigate the 
adverse impacts of mining on individuals and communities. Also, since 
FY1996, an amount equal to the interest earned by and paid to the Fund 
has been available for direct transfer to the United Mine Workers of 
America Combined Benefit Fund to defray the cost of providing health 
care benefits for certain retired coal miners and their dependents. 
Section 402(a) of SMCRA fixed the reclamation fee for the period before 
September 30, 2007, at 35 cents per ton (or 10 percent of the value of 
the coal, whichever is less) for surface-mined coal other than lignite, 
15 cents per ton (or 10 percent of the value of the coal, whichever is 
less) for coal from underground mines, and 10 cents per ton (or 2 
percent of the value of the coal, whichever is less) for lignite. As 
originally enacted, section 402(b) of SMCRA authorized collection of 
reclamation fees for 15 years following the date of enactment (August 
3, 1977); thus, OSM's fee collection authority would have expired 
August 3, 1992. However, Congress extended the fees and fee collection 
authority through September 30, 1995, in the Omnibus Budget 
Reconciliation Act of 1990. The Energy Policy Act of 1992 extended the 
fees through September 30, 2004. A series of short interim extensions 
in appropriations and other acts extended the fees through September 
30, 2007.
    The AML reclamation program was established in response to concern 
over extensive environmental damage caused by past coal mining 
activities. Before the 2006 amendments, the AML program reclaimed 
eligible lands and waters using the Fund, which came from the 
reclamation fees collected from the coal mining industry. Eligible 
lands and waters were those which were mined for coal or affected by 
coal mining or coal processing, were abandoned or left inadequately 
reclaimed prior to the enactment of SMCRA on August 3, 1977, and for 
which there was no continuing reclamation responsibility under State or 
other Federal laws.
    SMCRA established a priority system for reclaiming coal problems. 
Before the 2006 amendments, the AML program had five priority levels, 
but reclamation was focused on eligible lands and waters that reflected 
the top three priorities. The first priority was ``the protection of 
public health, safety, general welfare, and property from extreme 
danger of adverse effects of coal mining practices.'' The second 
priority was ``the protection of public health, safety, and general 
welfare from adverse effects of coal mining practices.'' The third 
priority was ``the restoration of land and water resources and the 
environment previously degraded by adverse effects of coal mining 
practices.''
    As originally established, the Fund was divided into State or 
Tribal and Federal shares. Each State or Indian tribe with a federally 
approved reclamation plan was entitled to receive 50 percent of the 
reclamation fees collected annually from coal operations conducted 
within its borders. The ``Secretary's share'' of the Fund consisted of 
the remaining 50 percent of the reclamation fees collected annually and 
all other receipts to the Fund, and was allocated into three shares as 
required by the 1990 amendments to SMCRA. First, OSM allocated 40% of 
the Secretary's share to ``historic coal'' funds to increase 
reclamation grants to States and Indian tribes for coal reclamation. 
However, all the funds which were allocated may not have been 
appropriated. Second, OSM allocated 20% to the Rural Abandoned Mine 
Program (RAMP), operated by the Department of Agriculture. However, 
that program has not been appropriated AML funds since the mid 1990's.
    Last, SMCRA required OSM to allocate 40% to ``Federal expense'' 
funds to provide grants to States for emergency programs that abate 
sudden dangers to public health or safety needing immediate attention, 
to increase reclamation grants in order to provide a minimum level of 
funding to State and Indian tribal programs with unreclaimed coal 
sites, to conduct reclamation of emergency and high-priority coal sites 
in areas not covered by State and Indian tribal programs, and to fund 
OSM operations that administer Title IV of SMCRA.
    States with an approved State coal regulatory program under Title V 
of SMCRA and with eligible coal mined lands may develop a State program 
for reclamation of abandoned mines. The Secretary may approve the State 
reclamation program and fund it. At the time the 2006 amendments were 
enacted, 23 States received annual AML grants to operate their approved 
reclamation programs. Three Indian tribes (the Navajo, Hopi and Crow 
Indian tribes) without approved regulatory programs have received 
grants for their approved reclamation programs as authorized by section 
405(k) of SMCRA.
    Before the 2006 amendments, States and Indian tribes that had not 
certified completion of reclamation of their abandoned coal lands could 
use AML grant funds on noncoal projects only to abate extreme dangers 
to public health, safety, general welfare, and property that arose from 
the adverse effects of mineral mining and processing and only at the 
request of the Governor or the governing body of the Indian tribe.
    The Surface Mining Control and Reclamation Act Amendments of 2006 
were signed into law as part of the Tax Relief and Health Care Act of 
2006, on December 20, 2006. Public Law 109-432. The 2006 amendments 
revised Title IV of SMCRA to make significant changes to the 
reclamation fee and the AML program. One change extended OSM's 
reclamation fee collection authority through September 30, 2021. The 
statutory fee rates were reduced by 10 percent from the current levels 
for the period from October 1, 2007, through September 30, 2012, and an 
additional 10 percent from the original levels for the period from 
October 1, 2012, through September 30, 2021.
    The Fund allocation formula was also changed. Beginning October 1, 
2007, certified States are no longer eligible to receive State share 
funds. Instead, amounts which would have been distributed as State 
share for fee collections for certified States are distributed as 
historic coal funds. The RAMP share was eliminated, and the historic 
coal allocation is further increased by the amount that previously was 
allocated to RAMP.
    Since 2006, the Department has interpreted the language of SMCRA 
section 411(h) to require that OSM use grants to provide funds to 
eligible States and Indian tribes and to preclude noncertified states 
and Indian tribes from using funds that they receive under that section 
for noncoal reclamation.
H.R. 4817
    Under SMCRA, states can use some of the AML funds they receive for 
non-coal reclamation. H.R. 4817 would amend SMCRA to allow noncertified 
states and tribes to use their mandatory funds received under Section 
411(h)(1) from their unappropriated AML Fund balance for reclamation 
activities on non-coal mine sites. Noncertified states and tribes can 
already use the funds they receive from the ``state share'' and 
``historic coal'' formulas for non-coal reclamation.
    When Secretary Salazar appeared before the Committee on Energy and 
Natural Resources to testify about the FY 2011 President's Budget for 
the Department of the Interior, he noted that in developing a balanced 
budget request for FY 2011, tough choices had to be made. The budget, 
in addition to eliminating unrestricted payments to certified states, 
also proposes limiting the use of AML payments to priority coal 
reclamation projects. The Department cannot support H.R. 4817 because 
it is inconsistent with the Fiscal Year 2011 budget.
    In an effort to focus the AML program on coal reclamation before 
the reclamation fee terminates, the President's FY 2011 budget proposes 
to restrict the use of AML funds by noncertified states to high 
priority coal reclamation. Because H.R. 4817 is inconsistent with the 
Administration's goal of ensuring expeditious coal reclamation, we 
cannot support this bill.
    While we recognize the dangers that abandoned hard rock mines can 
pose, AML funding needs to be focused on the highest priority problems 
Congress originally identified in 1977. The challenging economic 
conditions, coupled with this Administration's commitment to fiscal 
responsibility, only heighten the need for AML funds to be devoted to 
the highest priority coal problems. We note that the administration has 
continued to invest in AML, both through the Bureau of Land Management 
and National Park Service American Recovery and Reinvestment Act of 
2009 funding and the FY 2011 President's Budget to address hardrock 
mine reclamation on Federal Lands.
    We share the concern about non-coal abandoned mine sites and would 
be happy to share the expertise gained administering SMCRA and work 
with the Congress and this committee as we seek to address abandoned 
non-coal mine problems.
    Thank you for the opportunity to appear before the Subcommittee 
today and testify on this bill. I look forward to working with the 
Subcommittee to ensure that the Nation's abandoned mine lands are 
adequately reclaimed.
                                 ______
                                 
    Mr. Costa. Well, thank you very much. I understand I guess 
about the part about consistency with this next year's budget 
vis-a-vis cleanup. In the several years I have tried to 
understand the 1977 act, I am still trying to understand the 
consistency in SMCRA. I hate these acronyms.
    Ms. Owens. That is a challenge.
    Mr. Costa. Yes, because I think what is consistent about 
SMCRA is its inconsistency, but that is an editorial comment on 
my part. Our next witness is Ms. Loretta Pineda, who is the 
Director of the Division of Reclamation of Mining and Safety in 
Colorado Department of Natural Resources, and we are looking 
forward to hearing your testimony on this important 
legislation. Thank you, Ms. Pineda.

STATEMENT OF LORETTA PINEDA, DIRECTOR, DIVISION OF RECLAMATION, 
  MINING AND SAFETY, COLORADO DEPARTMENT OF NATURAL RESOURCES

    Ms. Pineda. Thank you. Good morning. My name is Loretta 
Pineda.
    Mr. Costa. I am sorry. Pineda, right?
    Ms. Pineda. Yes, thank you.
    Mr. Costa. I apologize. Pineda?
    Ms. Pineda. Pineda.
    Mr. Costa. Mucho gusto.
    Ms. Pineda. Don't take up some of my minutes here.
    [Laughter.]
    Mr. Costa. No, no, no. The Chairman is very good about 
that.
    Ms. Pineda. OK. Thank you.
    Mr. Costa. It is on my time.
    Ms. Pineda. OK.
    Mr. Costa. Ms. Pineda.
    Ms. Pineda. Thank you. I serve as the Director of the 
Division of Reclamation Mining and Safety within the Colorado 
Department of Natural Resources. I am appearing today on behalf 
of the Interstate Mining Compact Commission and the National 
Association of Abandoned Mine Land Programs. I appreciate the 
opportunity to appear before the Subcommittee today to present 
our views on H.R. 4817. The 30 states and tribes represented by 
these two organizations strongly support this important 
amendment to Title IV of the Surface Mining Control and 
Reclamation Act.
    Mr. Chairman, nationally, abandoned mine lands continue to 
have significant adverse effects on people and the environment. 
As state and tribal governments, we continue to aggressively 
pursue programs and partnerships to address hard rock AML 
programs through a variety of state and Federal funding 
sources. For states with active coal mining operations within 
their borders, the most consistent source of AML funding has 
been Title IV grants under SMCRA. Section 409 of the Act allows 
the states to use these grants at high-priority non-coal AML 
sites, and that work is generally limited to safeguarding 
hazards to public safety, such as closing mine openings.
    In December 2006, Congress amended Title IV of SMCRA and, 
among other things, distributed certain AML funds to states in 
an amount equal to those previously allocated under SMCRA but 
never appropriated. However, while Section 409 was not changed 
or amended in any way, the Interior Department through both a 
Solicitor's Opinion and Final Rule has now interpreted SMCRA to 
prohibit this enhanced funding from being used for non-coal 
projects. This is a significant blow to states such as New 
Mexico, Utah and Colorado that have previously used SMCRA AML 
funds to address many of the more serious hard rock AML 
problems.
    At stake for these three states is about $9 million 
annually, and without access to these funds, New Mexico will 
have to forego an average of 200 non-coal AML closures each 
year. Colorado will have to postpone some 350 closures, and 
Utah will have to shelf upwards of 500 closures. H.R. 4817 
would remedy the Interior Department's unfortunate 
interpretation of the 2006 amendment, and as such, we strongly 
support the bill. That interpretation not only disregards the 
fact that Section 409 was left unamended by Congress, it is 
also inconsistent with assurances repeatedly given to the 
states and tribes by OSM during the consideration of the 
legislation that non-coal could continue to be undertaken with 
these AML funds.
    The interpretation would also have the unacceptable result 
of requiring states and tribes to devote funds to lower-
priority coal sites while leaving dangerous non-coal sites 
unaddressed. OSM has argued that prior balance replacement 
funds are fundamentally distinct from 402[g] monies distributed 
from the fund. This according to OSM is due to the fact that 
these prior balance replacement funds are paid from the U.S. 
Treasury and have not been allocated under Section 402[g][1].
    The fact is these funds were originally allocated under 
Section 402[g][1], are due and owing pursuant to the operation 
of that section and did not change their color simply because 
they are paid from a different source. Without the operation of 
Section 402[g][1] in the first place, there would be no 
unappropriated state tribal share balances. There was no 
intention to condition or restrict the previously improved 
mechanisms and procedures that states were using to apply these 
monies to high-priority coal and non-coal problems.
    To change the rules based on such justification is 
inappropriate and inconsistent with the law. The urgency of 
advancing this legislation has been heightened, Mr. Chairman, 
by statements in OSM's proposed budget for Fiscal Year 2011. 
Therein, OSM is proposing to further restrict the ability of 
states to expend AML funds on non-coal reclamation projects. 
This will apparently occur as part of a legislation proposal 
that the Administration intends to pursue in the 111th 
Congress.
    We are uncertain exactly what OSM has in mind with respect 
to this aspect of the proposal, but we suspect it has to do 
with clarifying the very issue that is the subject of 4817. For 
all we know, it could be even farther reaching. For the same 
reasons that Congress needs to clarify this misinterpretation 
for non-coal AML work, it should also do so for the Acid Mine 
Drainage, AMD, set aside program. Section 402[g][6] has since 
1990 allowed a state and tribe to set aside a portion of its 
AML grant in a special AMD abatement account to address this 
pervasive problem.
    We therefore urge the Committee to amend H.R. 4817 to 
correct the current policy interpretation by the Interior and 
allow the use of unappropriated state and tribal share balance 
for the acid mind drainage set aside fund. Thank you for the 
opportunity to submit this statement on 4817. I would be happy 
to answer any questions.
    [The prepared statement of Ms. Pineda follows:]

    Statement of Loretta Pineda, Director, Division of Reclamation, 
      Mining and Safety, Colorado Department of Natural Resources

    My name is Loretta Pineda and I serve as the Director of the 
Division of Reclamation, Mining and Safety within the Colorado 
Department of Natural Resources. I am appearing today on behalf of the 
Interstate Mining Compact Commission (IMCC) and the National 
Association of Abandoned Mine Land Programs (NAAMLP). I appreciate the 
opportunity to appear before the Subcommittee today to present our 
views on H.R. 4817, a bill to amend the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA) to clarify that uncertified States and 
Indian tribes have the authority to use certain payments for certain 
noncoal reclamation projects. Both of the organizations I represent 
today strongly support this critical amendment to SMCRA.
    The Interstate Mining Compact Commission (IMCC) is an organization 
of 24 states located throughout the country that together produce some 
95% of the Nation's coal, as well as important hardrock and other 
noncoal minerals. Each IMCC member state has active mining operations 
as well as numerous abandoned mine lands within its borders and is 
responsible for regulating those operations and addressing mining-
related environmental issues, including the reclamation of abandoned 
mines. Over the years, IMCC has worked with the states and others to 
identify the nature and scope of the abandoned mine land problem, along 
with potential remediation options.
    The NAAMLP is a tax-exempt organization consisting of 30 states and 
Indian tribes with a history of coal mining and coal mine related 
hazards. These states and tribes are responsible for 99.5% of the 
Nation's coal production. All of the states and tribes within the 
NAAMLP administer abandoned mine land (AML) reclamation programs funded 
and overseen by the Office of Surface Mining (OSM) pursuant to Title IV 
of the Surface Mining Control and Reclamation Act (SMCRA, P.L. 95-87).
    Mr. Chairman, nationally, abandoned mine lands continue to have 
significant adverse effects on the environment. Some of the types of 
environmental impacts that occur at AML sites include subsidence, 
surface and ground water contamination, erosion, sedimentation, 
chemical release, and acid mine drainage. Safety hazards associated 
with abandoned mines account for deaths and/or injuries each year. 
Abandoned and inactive mines, resulting from mining activities that 
occurred over the past 150 years, are scattered throughout the United 
States. The sites are located on private, state and public lands.
    Over the years, several studies have been undertaken in an attempt 
to quantify the hardrock AML cleanup effort. In 1991, IMCC and the 
Western Governors' Association completed a multi-volume study of 
inactive and abandoned mines that provided one of the first broad-based 
scoping efforts of the national problem. Neither this study, nor any 
subsequent nationwide study, provides a completely reliable and fully 
accurate on-the-ground inventory of the hardrock AML problem. Both the 
1991 study and a recent IMCC compilation of data on hardrock AML sites 
were based on available data and professional judgment. While the data 
is seldom comparable between states due to the wide variation in 
inventory criteria, they do demonstrate that there are large numbers of 
significant safety and environmental problems associated with inactive 
and abandoned hardrock mines and that remediation costs are very large.
    Across the country, the number of abandoned hardrock mines with 
extremely hazardous mining-related features has been estimated at 
several hundred thousand. Many of the states and tribes report the 
extent of their respective AML problem using a variety of descriptions 
including mine sites, mine openings, mine features or structures, mine 
dumps, subsidence prone areas, miles of unreclaimed highwall, miles of 
polluted waterways, and acres of unreclaimed or disturbed land. Some of 
the types of numbers that IMCC has seen reported in our Noncoal Mineral 
Resources Survey and Report and in response to information we have 
collected for the Government Accountability Office (GAO) and others 
include the following gross estimated number of abandoned mine sites: 
Alaska - 1,300; Arizona - 80,000; California - 47,000; Colorado - 
7,300; Montana - 6,000; Nevada - 16,000; Utah - 17,000 to 20,000; New 
York - 1,800; Virginia - 3,000 Washington - 3,800; Wyoming - 1,700. 
Nevada reports over 200,000 mine openings; New Mexico reports 15,000 
mine hazards or openings; Minnesota reports over 100,000 acres of 
abandoned mine lands and South Carolina reports over 6,000 acres.
    What becomes obvious in any attempt to characterize the hardrock 
AML problem is that it is pervasive and significant. And although 
inventory efforts are helpful in attempting to put numbers on the 
problem, in almost every case, the states are intimately familiar with 
the highest priority problems within their borders and also know where 
limited reclamation dollars must immediately be spent to protect public 
health and safety or protect the environment from significant harm.
    Today, state agencies are working on hardrock abandoned mine 
problems through a variety of limited state and federal funding 
sources. Various federal agencies, including the U.S. Environmental 
Protection Agency, Bureau of Land Management, U.S. Forest Service, U.S. 
Army Corps of Engineers and others have provided some funding for 
hardrock mine remediation projects. These state/federal partnerships 
have been instrumental in assisting the states with our hardrock AML 
work and, as states take on a larger role for hardrock AML cleanups 
into the future, we will continue to coordinate with our federal 
partners. However, most of these existing federal grants are project 
specific and do not provide consistent funding. For states with coal 
mining, the most consistent source of AML funding has been the Title IV 
grants under the Surface Mining Control and Reclamation Act (SMCRA). 
Section 409 of SMCRA allows states to use these grants at high priority 
non-coal AML sites. The funding is generally limited to safeguarding 
hazards to public safety (e.g., closing mine openings) at hardrock 
sites.
    In December 2006, Congress significantly amended the SMCRA AML 
program to, among other things, distribute funds to states in an amount 
equal to that previously allocated under SMCRA but never appropriated. 
However, while Section 409 was not changed or amended in any way, the 
Interior Department, through both a Soliticor's Opinion (M-37014) and 
final rule (73 Fed. Reg. 67576), has now interpreted SMCRA to prohibit 
this enhanced funding from being used for noncoal projects. This is a 
significant blow to states such as New Mexico, Utah and Colorado that 
have previously used SMCRA AML funds to address many of the more 
serious hardrock AML problems within their borders.
    H.R. 4817 would remedy the Interior Department's unfortunate 
interpretation of the 2006 Amendments and as such we strongly support 
the bill. That interpretation not only disregards the fact that section 
409 was left unamended by Congress, it is also inconsistent with 
assurances repeatedly given to the states and tribes by OSM during the 
consideration of the legislation that noncoal work could continue to be 
undertaken with these AML funds. The interpretation would also have the 
unacceptable result of requiring states and tribes to devote funds to 
lower priority coal sites while leaving dangerous noncoal sites 
unaddressed. While OSM will argue that this may impact the amount of 
funding available to uncertified states to address high priority coal 
problems, Congress did not seem overly concerned with this result but 
rather deferred to its original framework for allowing both high 
priority coal and noncoal sites to be addressed.
    In its final rule implementing the 2006 amendments to SMCRA (at 73 
Fed. Reg. 67576, et seq.), OSM continued to abide by its argument that 
``prior balance replacement'' funds (i.e the unappropriated state and 
tribal share balances in the AML Trust Fund) are fundamentally distinct 
from section 402(g) moneys distributed from the Fund. This, according 
to OSM, is due to the fact that these prior balance replacement funds 
are paid from the U.S. Treasury and have not been allocated under 
section 402(g)(1). This is a distinction of convenience for the 
Interior Department's interpretation of the 2006 Amendments and has no 
basis in reason or law. The fact is, these funds were originally 
allocated under section 402(g)(1), are due and owing pursuant to the 
operation of section 402(g)(1), and did not change their ``color'' 
simply because they are paid from a different source. Without the 
operation of section 402(g)(1) in the first place, there would be no 
unappropriated (i.e. ``prior'') state and tribal share balances. The 
primary reason that Congress appears to have provided a new source for 
paying these balances is to preserve a balance in the AML Trust Fund to 
1) generate continuing interest for the UMW Combined Benefit Trust Fund 
and 2) to insure that there was a reserve of funding left after fee 
collection terminates in 2021 to address any residual high priority 
historic coal problems. There was never an intent to condition or 
restrict the previously approved mechanisms and procedures that states 
and tribes were using to apply these moneys to high priority coal and 
noncoal problems. To change the rules based on such a justification is 
inappropriate and inconsistent with law.
    The urgency of advancing this legislation has been heightened, Mr. 
Chairman, by statements in OSM's proposed budget for Fiscal Year 2011. 
Therein, OSM is proposing to further restrict the ability of states to 
expend AML funds on noncoal reclamation projects. This will apparently 
occur as part of a legislative proposal that the Administration 
supposedly intends to pursue in the 111th Congress. While the primary 
focus of that proposal will be the elimination of future AML funding 
for states and tribes that are certified under Title IV of SMCRA (which 
we adamantly oppose), OSM's explanation of its proposal also contains 
the following language: ``Similarly, the proposal will require that 
payments to noncertified States are only used for high-priority coal 
problems.'' We are uncertain exactly what OSM has in mind with respect 
to this aspect of the legislative proposal, but we suspect it has to do 
with clarifying the very issue that is the subject of H.R. 4817. For 
all we know, it could be even farther reaching.
    For the same reasons that Congress needs to clarify this 
misinterpretation for noncoal AML work, it should also do so for the 
acid mine drainage (AMD) set aside program. Section 402(g)(6) has, 
since 1990, allowed a state or tribe to set aside a portion of its AML 
grant in a special AMD abatement account to address this pervasive 
problem. OSM's recent policy (and now regulatory) determination is 
denying the states the option to set aside moneys from that portion of 
its grant funding that comes from ``prior balance replacement funds'' 
each year to mitigate the effects of AMD on waters within their 
borders. AMD has ravaged many streams throughout the country, but 
especially in Appalachia. Given their long-term nature, these problems 
are technologically challenging to address and, more importantly, are 
very expensive. The states need the ability to set aside as much 
funding as possible to deal with these problems over the long term. 
Congress clearly understood the magnitude of this challenge given the 
fact that it increased the amount of money that states could set aside 
for this purpose from 10 to 30 percent in the 2006 Amendments. We 
therefore urge the Committee to amend H.R. 4817 to correct the current 
policy interpretation by Interior and allow the use of unappropriated 
state and tribal share balances (``prior balance replacement funds'') 
for the AMD set aside, similar to the use of these balances for noncoal 
work. Suggested amendatory language is attached to our statement.
    Over the past 30 years, tens of thousands of acres of abandoned 
mine lands have been reclaimed, thousands of mine openings have been 
closed, and safeguards for people, property and the environment have 
been put in place. There are numerous success stories from around the 
country where the states' AML programs have saved lives and 
significantly improved the environment. Suffice it to say that the AML 
Trust Fund, and the work of the states pursuant to the distribution of 
monies from the Fund, have played an important role in achieving the 
goals and objectives of set forth by Congress when SMCRA was first 
enacted--including protecting public health and safety, enhancing the 
environment, providing employment, and adding to the economies of 
communities impacted by past coal and noncoal mining. Passage of H.R. 
4817 will further these congressional goals and objectives.
    In support of our position on H.R. 4817, we also request that you 
include for the record the attached resolution (No. 07-8) adopted by 
the Western Governors that urges the continued use of funds collected 
or distributed under Title IV of SMCRA for the reclamation of high 
priority, hard-rock abandoned mines. This resolution is in support of 
the Western Governors' policy statements B.4 and B.5.
    Thank you for the opportunity to present our views on H.R. 4817. We 
welcome the opportunity to work with you to complete the legislative 
process and see this bill, as amended, become law.
                                 ______
                                 

 Suggested Amendment to H.R. 4817 to include the AMD set-aside account

                  (Amendments are in bold and italics)

                                 A Bill

To amend the Surface Mining Control and Reclamation Act of 1977 to 
clarify that uncertified States and Indian tribes have the authority to 
use certain payments for certain noncoal and acid mine drainage 
reclamation projects.

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled,

    SECTION 1. ABANDONED MINE RECLAMATION.
    (a)  Reclamation Fee_Section 402(g)(6)(A) of the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1232(g)(6)(A)) is 
amended by inserting ``and section 411(h)(1)'' after ``paragraphs (1) 
and (5)''.
    b)  Filling of Voids and Sealing Tunnels.--Section 409(b) of the 
Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1239(b)) 
is amended by inserting ``and section 411(h)(1)'' after ``section 
402(g)''.
    (c)  Use of Funds.--Section 411(h)(1)(D)(ii) of the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1240a(h)(1)(D)(ii)) is 
amended by striking ``section 403'' and inserting ``section 402(g)(6), 
403 or 409.''
                                 ______
                                 
Western Governors' Association
Policy Resolution 10-3
Cleaning Up Abandoned Mines in the West

A. BACKGROUND
         1.  Mining has a long history in the West. The western states 
        are rich in hardrock minerals like gold, silver and copper as 
        well as coal, much of it low sulfur.
Hardrock Mines
         2.  Historic hardrock mining in the West, unregulated until 
        recent years, has left a legacy of thousands of historic 
        abandoned mines, which pose a threat to human health and safety 
        and to the environment. These historic mines pre-date modern 
        federal and state environmental regulations which were enacted 
        in the 1970s. Often a responsible party for these mines is not 
        identifiable or not economically viable enough to be compelled 
        to clean up the site. Thousands of stream miles are impacted by 
        drainage and runoff from such mines, one of the largest sources 
        of adverse water quality impacts in several Western states.
         3.  Cleanup of abandoned hardrock mines is hampered by two 
        issues--lack of funding and concerns about liability. Both of 
        these issues are compounded by the land and mineral ownership 
        patterns in mining districts. It is not uncommon for there to 
        be dozens of parties with partial ownership or operational 
        histories associated with a given site.
         4.  Recognizing the potential for economic, environmental and 
        social benefits to downstream users of impaired streams, 
        Western states, municipalities, federal agencies, volunteer 
        citizen groups and private parties have come together across 
        the West to try to clean up some of these abandoned hardrock 
        sites. However, due to questions of liability, many of these 
        Good Samaritan efforts have been stymied.
         5.  Potential liability exists for Good Samaritans under Clean 
        Water Act (CWA) Section 402 National Pollutant Discharge 
        Elimination System (NPDES) permit program because a party can 
        inherit liability for any discharges from an abandoned mine 
        site remaining after their cleanup efforts, even though the 
        volunteering remediating party had no previous responsibility 
        or liability for the site, and has reduced the water quality 
        impacts from the site by completing a cleanup project.
         6.  Potential liability exists for Good Samaritans under the 
        Comprehensive Environmental Response, Compensation, and 
        Liability Act (CERCLA).
         7.  Liability concerns also prevent mining companies from 
        going back into historic mining districts and remining old 
        abandoned mine sites or doing volunteer cleanup work. While 
        this could result in an improved environment, companies that 
        are interested are justifiably hesitant to incur liability for 
        cleaning up the entire abandoned mine site.
Coal Mines
         8.  Congress authorized creation of the Abandoned Mine Land 
        (AML) Program under Title IV of the Surface Mining Control and 
        Reclamation Act of 1977 (SMCRA). The program is funded by fees 
        from current coal production. The coal AML program provides 
        funding to states to restore lands mined for coal and abandoned 
        or left inadequately restored before August 3, 1977.
         9.  Section 409 of SMCRA also authorizes states to use AML 
        grant funds to address high priority non-coal mine hazards. 
        While the state AML programs are limited to using SMCRA funds 
        to only address public health and safety hazards at abandoned 
        non-coal mines, and not purely environmental threats, the state 
        programs have employed this provision to make a dent in the 
        public safety threats posed by abandoned mines.
        10.  In December 2006, Congress amended Title IV of SMCRA to 
        reauthorize the fee collection authority, to provide for the 
        distribution of the unappropriated stateshare balance of the 
        AML Trust Fund, to increase the minimum program funding to $3 
        million per year. Section 409 of SMCRA was not amended and no 
        limits were placed on non-coal projects.
        11.  However, the Office of Surface Mining (OSMRE) adopted 
        rules to severely limit certain states from using AML funds for 
        non-coal mine hazards. For Colorado, New Mexico and Utah, over 
        70% of their funds are now off limits for non-coal projects. 
        These states are required to fund lower priority coal mine 
        reclamation projects while higher priority non-coal hazards 
        would remain unfunded. The Administration is also proposing to 
        deny AML funds to states which have ``certified'' completion of 
        coal AML projects, contrary to agreements codified in 2006.
        12.  The new interpretation of SMCRA by OSMRE conflicts with 
        the clear language of the law authorizing the use of coal AML 
        funds for high priority non-coal mine hazards. OSMRE's new 
        interpretation will leave the public exposed to significant 
        hazards to public health and safety at abandoned non-coal mines 
        being ignored while states are required to expend coal AML 
        funds at lower priority coal mine sites.
B. GOVERNORS' POLICY STATEMENT
Hardrock Mines
        1.  Western Governors believe Congress should amend the Clean 
        Water Act to protect volunteering remediating parties who 
        conduct authorized remediation from becoming legally 
        responsible under section 301(a) and section 402 of the CWA for 
        any continuing discharges from the abandoned mine site after 
        completion of a cleanup project, provided that the remediating 
        party--or ``Good Samaritan''--does not otherwise have liability 
        for that abandoned or inactive mine site. Legislative and 
        administrative remedies to address potential CERCLA liabilities 
        should also be considered.
        2.  The Governors encourage federal land management agencies, 
        such as the U.S. Bureau of Land Management, the National Park 
        Service and the U.S. Forest Service, as well as support 
        agencies, such as the U.S. Environmental Protection Agency, the 
        U.S. Geological Survey and the U.S. Army Corps of Engineers, to 
        coordinate their abandoned hardrock mine cleanup efforts with 
        state efforts to avoid redundancy and unnecessary duplication, 
        and to employ the expertise and knowledge of state AML 
        programs.
        3.  Western Governors urge Congress to designate a dedicated 
        source of funding for the cleanup of abandoned hardrock mines.
Coal Mines
        4.  Western Governors urge the Administration to uphold the 
        intent of Congress to allow states to exercise discretion on 
        the use of their AML grant funds to address high priority non-
        coal abandoned mine hazards and to return funds due 
        ``certified'' states under existing law.
        5.  Western Governors urge Congress to adopt legislation to 
        restore the flexibility under SMCRA for the states to use AML 
        funds at both coal and high priority noncoal abandoned mine 
        sites and to ensure appropriate liability protections remain in 
        place.
C. GOVERNORS' MANAGEMENT DIRECTIVES
        1.  WGA staff will advance the policy positions stated above in 
        appropriate venues as warranted and report to Governors and 
        Staff Council on progress and impediments.
        2.  WGA shall transmit this resolution to Congress, the 
        Secretary of the Interior, Administrator of the Environmental 
        Protection Agency, the Director of the Office of Management and 
        Budget and other appropriate parties as warranted.
                                 ______
                                 
    Mr. Costa. Even though I intruded upon your time, you still 
made it. How about that? I was going to give you additional 
time. What you are actually saying, and we will get to that in 
the questions, but in the 2006 amendments that took place, the 
interpretation by the Department of the Interior has not 
reflected the will of Congress as to how those funds could be 
in a discretionary fashion utilized for the purpose of cleanup, 
and that is a point I want to get back to when we get to Q&A.
    Our last witness is John Antonio, the Governor of the 
Laguna Tribe, and we appreciate the fact that you are here, and 
we look forward to hearing your comments.

 STATEMENT OF THE HONORABLE JOHN ANTONIO, GOVERNOR, PUEBLO OF 
                             LAGUNA

    Mr. Antonio. Thank you, Mr. Chairman. Mr. Costa, Mr. 
Lamborn, Mr. Teague and Mr. Heinrich.
    Mr. Costa. At home they say Costa, but it is Costa.
    Mr. Antonio. OK. I appreciate the opportunity to be here. 
As was mentioned, I am John Antonio, Governor for the Pueblo 
Laguna in New Mexico, and I bring greetings from our 8,200-
member-strong Laguna located probably about 40 minutes or so 
west of Albuquerque, New Mexico, in our great state. Again, I 
want to thank you for the opportunity. I come here with an 
urgent plea to help us reclaim the world's largest open-pit 
uranium mine.
    Mining began in 1953. It eventually closed in 1982, so we 
had a history of about 30 years of mining, first by Anaconda 
Company, which was eventually acquired by ARCO. During the span 
of mining, they removed over 400 million tons of earth to mine 
about 24 tons of uranium ore. The original lease was about 
8,000 acres. You can see on your exhibits the extent of the 
mining, the devastation, and in the red circle, you see a 
village called Paguate, which is home to about 1,500 tribal 
members.
    Mr. Costa. How do you pronounce the name of the Village?
    Mr. Antonio. Paguate. Paguate Village.
    Mr. Costa. Paguate.
    Mr. Antonio. One of our six villages. Again, this village 
has been impacted over the life of the mine, not only during 
the 30 years, but 57 years later. A lot more area has been 
impacted by the wind-blown dust and the perennial streams that 
pass through. Fifty-seven years later we are still impacted, 
and many people have suffered. Many have died from radiation-
related illnesses, cancers, respiratory illnesses, and there 
has been a report of a direct link to diabetes, which we do 
have high incidents.
    In fact, my mom and two sisters are affected by radiation 
exposure with the diabetes issues, a lot of my uncles, 
relatives. A lot of our people have perished because the cancer 
is related. We did have many reclamation efforts in 1989 
through 1995 with a $43 million settlement from ARCO. However, 
very minimal reclamation was achieved at that time. In the 
1980s, BLM put a cost of about $400 million to adequately 
reclaim.
    We still have high-grade ore piles sitting on a lot of 
wind-blown dust. The erosion continues on some of these areas 
that have been capped with topsoil. Efforts to clean up have 
been again very minimal. The Department of the Interior has 
issued a record of decision, and we continue to monitor various 
contamination parameters with our own funds. As far as trying 
to do our part, we have entered into partnerships with 
Environmental Protection Agency. They conducted an area 
radiological survey as you see in the different exhibits the 
extent of the contamination.
    We are also now looking at the homes because some of the 
homes were built with rocks that were coming from the mine area 
as a result of the overburden removal. We also submitted an 
application to EPA to designate a site as a superfund site. We 
also approved to establish our own air and water quality 
standards to protect ourselves from future mining. We also 
approved a moratorium against future uranium mining. However, 
it only protects our area.
    We also entered in June of 2010 with EPA an MOU to address 
the uranium mine contamination. With New Mexico Department of 
Health, we have also implemented a study. The study has 
indicated that there are high levels of uranium contamination 
in the urine, and so we continue to follow up. We have also 
entered partnerships with U.S. Geological Survey. They are 
going to look at the dispersion of radiation contamination 
through soil, water, dust, et cetera. We make a plea to end the 
suffering of our people. Thank you very much.
    [The prepared statement of Mr. Antonio follows:]

           Statement of The Honorable John E. Antonio, Sr., 
                    Governor of the Pueblo of Laguna

I.  INTRODUCTION
    This statement is submitted by the Pueblo of Laguna (``Pueblo'' or 
``Laguna'') to apprise the Committee of the Pueblo's efforts to reclaim 
lands once used for the extraction of uranium ore and to assist the 
Committee in assessing the Pueblo's need for funds to use for certain 
non-coal reclamation projects.
    The Pueblo of Laguna is a federally recognized Indian tribe located 
45 miles west of Albuquerque, New Mexico, and has approximately 8,200 
members who are affiliated with six (6) different villages. The 
Pueblo's lands consist of approximately 590,000 acres in Cibola, 
Sandoval, and Bernalillo counties, and contain the site of what was 
once the world's largest open pit uranium mine; the Jackpile-Paguate 
Mine. The Jackpile-Paguate Mine, which began operating in 1953, was 
finally shut down in 1982 but then laid dormant for 7 years before 
reclamation activities began. During that time, stockpiled waste was 
blown into surrounding areas, including the Paguate Village, located 
just 30 yards from the mine. In addition, rain caused waste from the 
mine to flow into surface water tributaries. After years of negotiating 
with the company who conducted the mining, minimal reclamation efforts 
began in 1989 and were completed in 1995. However, there still remain 
piles of high grade ore on the surface and within some of the exposed 
open pits.
    Despite efforts to reclaim the mine after it closed, the mine 
continues to have a tremendous impact on the long-term health and 
environmental landscape at the Pueblo. Many Pueblo members who worked 
in the mine or lived near the mine suffer from cancer-related illnesses 
and other health conditions. Two surface water tributaries near the 
mine, the Rio Moquino, and the Rio San Jose have since tested positive 
for radiation contamination. Groundwater is also at risk for radiation 
contamination. Because water is scarce in our arid part of New Mexico, 
the contamination of our water resources is devastating to our people 
and the entire region. Although no official studies have been conducted 
to establish a direct correlation between the mining activities and the 
increase in cancer among individuals who live near or worked in the 
mine, significant statistical information is being compiled on former 
mine workers applying for benefits under the Radiation Exposure 
Compensation Act (``RECA''). Many of these applicants have been 
diagnosed with cancer-related illnesses.
    In addition, other studies that are now being conducted may show a 
direct correlation between uranium mining activities and various 
respiratory and kidney problems, and may even extend to problems 
related to diabetes. Testimony on these and related issues was 
presented to a State Legislative Interim Subcommittee in Grants, New 
Mexico in 2009, on the impacts of uranium mining.
    As a result of our experiences with mining, the Pueblo is opposed 
to any new mining on or near Pueblo lands. In 2007, our Tribal Council 
passed a resolution to establish a moratorium on any uranium mining and 
development. However, in the event that mining is permitted near our 
lands, the Pueblo seeks to be included in the process by having a voice 
to express our concerns about having adequate protections in place.
II.  MINING AT LAGUNA
A. Uranium Mining, Generally
    Uranium, a silvery-white, radioactive metal similar in appearance 
to a piece of silver or steel, is never found in its pure form in 
nature. It is always found combined with other elements into different 
chemical compounds, which are highly poisonous. Uranium has been used 
to make material for nuclear weapons and to make fuel for nuclear power 
plants. Deposits of minerals that include large amounts of uranium, 
large enough to make mining worthwhile are rare. However, the ``Four 
Corners'' area of Arizona, Colorado, New Mexico and Utah contains some 
of the richest deposits of uranium ores in the world. Open pit mining 
is used when the ore is close to the surface and involves removing the 
``overburden,'' or top layers of soil and rock that cover the ore. The 
overburden is hauled off and often stored in huge piles. Underground 
mining requires drilling, blasting and digging into the earth and the 
ore is obtained by the use of elevators. Holes are drilled to provide 
ventilation because the decay of uranium results in a radioactive gas 
called radon. Radon can build up in underground mines causing serious 
health problems for miners. In addition, underground water can cause 
problems. Once the uranium is obtained, the next process is 
``milling,'' or removing the valuable mineral from the mined ore. The 
ore is crushed and then mixed with water to form slurry. The slurry is 
mixed with chemicals to separate out the uranium ore from the rest of 
the rock, referred to as ``leaching.'' The liquid containing the 
uranium ore, or ``leachate,'' is then filtered from the rest of the 
slurry and further concentrated by a precipitation process. Water is 
then removed and the precipitate is dried to produce ``yellowcake,'' 
which is then packaged and shipped to an enrichment plant. Material 
left over from the milling process is referred to as ``tailing,'' which 
are still dangerous because of the radioactive elements they contain.
B. Uranium Mining at Laguna
    The Grants Mineral Belt, which stretches from east of Gallup, New 
Mexico to Laguna, New Mexico and includes Laguna Pueblo lands, has 
especially rich uranium deposits. In May 1952, the Anaconda Mining 
Company (later Atlantic Richfield or ARCO) entered into a lease with 
the Pueblo to mine uranium on 4,988 acres of Laguna land near the 
Village of Paguate. Additional leases were signed in 1963 and 1976 for 
2,560 and 320 more acres, respectively, for a total of 8,000 acres. As 
a result, Anaconda operated one of the world's largest open pit uranium 
mines at the Pueblo from 1953 until 1982. Before the first lease was 
signed with the Pueblo, Anaconda had signed an agreement with the U.S. 
Atomic Energy Commission (``Commission''), which made Anaconda the sole 
ore-buying agent for the Commission. In fact, a majority of uranium 
produced on Indian land between 1950 and 1968 went to the Commission.
    Anaconda utilized three (3) open pit mines and 9 underground mines 
at Laguna to produce 24 million tons of uranium-bearing ore. More than 
400 million tons of earth had to be moved to obtain the ore. Mining 
conducted from the 9 underground mines primarily began in the 1970's. 
The Jackpile-Paguate Mine, located near the Village of Paguate, was the 
deepest open pit mine at 625 feet. The mine operated 24 hours a day, 7 
days a week, 365 days a year for 30 years and employed as many as 800 
tribal members. At its peak, the mine employed the majority of the 
workforce at Laguna and neighboring communities.
    ARCO closed the mine on March 1, 1982, after which it laid dormant 
for 7 years before any efforts to reclaim the mine began. More than 
2,000 acres of land and several pits needed to be reclaimed. One pit 
measured over 600 feet deep, and a few pits were filled with 
contaminated water that had seeped up over the years. A draft 
environmental impact statement found ARCO primarily responsible and 
recommended reclaiming the mine because the site was a public health 
and safety hazard, noting that more serious hazards would develop if 
the site was left un-reclaimed. Reclamation began in 1989 after ARCO 
and the Pueblo reached an agreement by which the Pueblo would perform 
the reclamation. However, the $43 million provided by ARCO was well 
below the estimated $400 million required to fully reclaim the mine. 
The Pueblo tried to reclaim the mine as best as possible, despite the 
lack of funding and the fact that there were no standards for 
reclaiming a uranium mine in place at the time.
    In reclaiming the mine, the Laguna Construction Company used the 
overburden to partially backfill some of the pits. It was specially 
sloped and terraced to keep it in place and prevent wind and rain from 
washing it away. Next, a layer of rock, or shale, of up to 12 feet 
thick was put into the pits to keep radiation from coming up into the 
air. An additional foot and a half of topsoil was placed over the top 
and seeded with grasses and other native plants. High grade ore piles 
that were still on the surface were covered with layers of top soil and 
reseeded with native vegetation. The Pueblo's reclamation process, the 
first attempt in the world to reclaim an open pit uranium mine, was 
completed in 1995, but the Pueblo continues to monitor the mine and its 
ongoing impacts. And, because the $43 million provided by ARCO only 
enabled the Pueblo to conduct minimal reclamation, much work still 
remains to be done to fully reclaim the mine and reduce the health and 
environmental impacts.
III.  MINING IMPACTS ON LAGUNA
    The Village of Paguate, whose village boundaries lie only 30 yards 
from the edge of the largest open pit in the mining area, was 
significantly affected by the mining activity. In this village of 
approximately 1500 residents, blasting caused old stone and mud houses 
to crack apart, and dust from the mine coated homes, crops, and 
clothes. Paguate residents on the south and eastern sides of the 
village, closest to the mine, recall dust that seemed to linger for 
hours after a blast and cracks on the walls of homes.
    Despite the minimal reclamation efforts, former mining employees as 
well as Pueblo members living in Paguate and downwind continue to 
report growing numbers of cancer-related illnesses. Contaminated 
surfaces and groundwater sources still exist. Of the 24 million tons of 
ore mined from the Jackpile-Paguate Mine, approximately 23.7 million 
tons were left as waste, which are still dangerous because of 
radioactive elements they contain. In addition, water that flows 
through the old mine, including the Rio Moquino and the Rio Paguate, is 
contaminated from radioactive elements. Many Laguna members have died, 
and others suffer from high incidences of diabetes, reportedly linked 
to radiation exposure attributed to uranium mining. In addition, 
radiation exposure can cause damage that may not show up for 10-40 
years.
    Currently, little is known about the stability of the radioactive 
pollutants and additional risks, which may involve migration into local 
groundwater supplies or into the atmosphere. Meanwhile, the mine 
continues to have a tremendous impact on the long-term health and 
environmental landscape at the Pueblo, where many residents and former 
mine employees continue to experience deleterious health effects. The 
mine contaminated parts of the reservation with toxic, radioactive 
materials and miners who worked at the Jackpile Mine were not warned of 
the exposure to radiation, including radon gas and radioactive dust.
IV.  CONSULTATION AND COLLABORATION WITH U.S. ENVIORNMENTAL PROTECTION 
        AGENCY FOR POSSIBLE DESIGNATION OF THE JACKPILE-PAGUATE MINE 
        SITE AS A SUPERFUND SITE.
    During the month of August, 2009, the Environmental Protection 
Agency (EPA) contacted the Pueblo to see if an Aerial Radiological 
Survey could be conducted of the entire Grants Mineral Belt area, which 
includes Pueblo lands and the Jackpile mine site. The purpose of the 
aerial flyover was to: 1) identify any structures with elevated 
radiological activity and which might have been associated with 
historic uranium mining activity at Jackpile; 2) data collected from 
this survey would allow EPA to focus its ground resources on those 
structures with elevated radiological activity; 3) EPA would analyze 
the results of the data to determine if any remediation is needed; 4) 
the report, along with the analysis would be given to the Pueblo; and 
5) the collected data could potentially be used to secure funds to 
assist with any remediation.
    On September 29, 2009, representatives from the EPA Region 6 Office 
came before the Pueblo Council and gave a presentation that included 
their request for the aerial radiological survey, and a request to 
enter into an MOU to formalize a partnership to deal with any air, 
water, environmental, and cultural resources impacts as a result of any 
mining activity. On October 13, 2009, Mr. Larry Starfield, Acting 
Regional Administrator for Region 6 and several of his staff members 
came before the Pueblo Council to formally consult with the Council on 
a government-to-government basis for the following purposes: 1) to 
discuss how further consultation should take place, i.e., informal vs. 
formal type of discussions on issues/concerns; 2) the effects of 
uranium mining on the tribe's air, land, water, and cultural resources; 
and 3) what type of communications can be agreed upon by both parties 
during further consultation.
    EPA also explained that they were developing a five (5) year 
Comprehensive Plan on how to deal with uranium issues. This Plan could 
set out a good communication plan between the Pueblo and EPA; set out 
certain activities that both EPA and the Pueblo can be involved with; 
and would also provide that there be a working partnership between EPA 
and the Pueblo to try and resolve any issues/concerns that the Pueblo 
has. Representatives from the Pueblo reviewed the Comprehensive Plan 
and made several comments and/or suggestions on edits to the Plan. EPA 
also wanted to develop a Data Base of information on uranium issues and 
wants to work with the Pueblo on how this information can be collected, 
stored and retrieved for use by all parties--tribe, state and federal 
governments.
    In answer to the question of whether the Jackpile mine site might 
qualify as a superfund site, it was indicated that the environmental 
conditions have to be evaluated first to see if the site meets a 
minimum threshold for qualifying as a superfund site. This evaluation 
would require a Hazard Ranking Score (HRS), which is a ranking score 
that EPA would use to see where the Jackpile mine ranks as compared to 
all other sites throughout the country. After the discussion, the 
Pueblo Council passed Resolution No. 10-10, approving of the submittal 
of an application for designation of the Jackpile Mine site as a 
Superfund Site.
    EPA also developed a proposed MOU and presented it to Council for 
its review. After several meetings and long discussions over the 
contents of the MOU, the Council and representatives from the EPA 
Region 6 Office entered into a formal MOU on June 22, 2010.
V.  STUDY BY THE NEW MEXICO DEPARTMENT OF HEALTH'S ENVIRONMENTAL 
        EPIDEMIOLOGY BUREAU ON THE HEALTH IMPACTS OF URANIUM MINING.
    A presentation was made to the Pueblo Council by Dr. Jana Gunnell, 
on a request to conduct a study on the effects of uranium mining and 
the study would concentrate on: 1) testing a participant's drinking 
water source for uranium; 2) testing a participant's urine specimen for 
uranium; and 3) conducting a survey with each participant.
    It was explained that funding in the amount of $40,000 was 
allocated during the 2007 regular session of the State legislature 
under Senate Bill 611 to ``develop a testing protocol, develop and 
establish a health registry, contract with appropriate testing 
laboratories and coordinate affected parties in regard to a voluntary 
testing program for military veterans who may have been exposed to 
depleted uranium or other isotopes in the Persian Gulf war or in the 
current Iraq or Afghanistan conflict.''
    Based on the results from 2007-2008, the Environmental Health 
Epidemiology Bureau (EHEB) was approved to utilize the funds 
differently from what was stated in the legislation for a variety of 
reasons. First, there were a fairly small number of veterans who could 
be recruited and of those, only 31 out of 83 chose to obtain an 
isotopic analysis (37%). Second, a health registry for veterans already 
exists. The Veterans Administration (VA) has a Depleted Uranium Follow-
Up Program that has been in existence since 1993. Any veteran who 
believes he or she was exposed to depleted uranium may participate. 
Finally, the total uranium in urine is the result used to determine the 
potential for uranium to cause adverse health effects, regardless of 
whether there is a depleted uranium component.
    The Council approved to allow this study to go forward and 
information was disseminated out to the public that there were 
approximately 50 slots for community members to participate in the 
survey. This study has been completed and initial results have 
indicated that some tribal members have elevated levels of uranium in 
their urine. As a follow-up to the uranium study, the National Center 
for Environmental Health, Centers for Disease Control and Prevention 
(CDC) is conducting its own study, to see if people who live in an area 
where there are high levels of uranium in the environment have an 
increased risk for kidney disease.
VI.  U.S. GEOLOGICAL SURVEY - URANIUM AND DUST RESEARCH PROJECT
    On July 20, 2010, a presentation was made by Dr. Tanya Gallegos, 
from the U.S. Geological Survey Office out of Denver, Colorado. The 
purpose of the proposed research project is to understand the 
dispersion of wastes from the Jackpile-Paguate mine through the air, 
water and soil. The purpose of the study was to: 1) look at the effects 
of the Jackpile mine on the environment; 2) see how the wind and water 
has moved the uranium from the Jackpile mine site area to other areas 
of the reservation and how far; 3) has the air, soil and water been 
contaminated; and 4) provide information needed to ultimately develop 
methods for remediation and ground water restoration.
    Dr. Gallegos explained that much of the work to be performed in 
this study would occur out in the field, where there would be a 
collection of water samples, dust samples, mine waste, radiometric 
survey, collection of surface soils from various areas in and around 
the mine site, and also have a measurement of the water parameters--how 
the water from some small streams may have carried contaminants from 
the mine site downstream. The timeframe for the study was to commence 
in September, 2010, and the expected duration was to be about one (1) 
month. It was also explained that there may be a need to revisit some 
sites at a later time to collect more dust samples. On August 10, 2010, 
the Pueblo Council approved to allow the USGS Uranium Study to go 
forward.
VII.  PUSH FOR RADIATION EXPOSURE COMPENSATION ACT (RECA) AMENDMENTS 
        AND REFORM OF THE MINING LAW OF 1872.
    The Pueblo has been actively involved in working with the New 
Mexico Congressional delegation to amend the Radiation Exposure 
Compensation Act to cover former uranium workers beyond the 1972 cutoff 
period. As was indicated in the first portion of this testimony, the 
Jackpile-Paguate Mine did not close until 1982, ten years after the 
cutoff date under RECA. Many of these post '71 mine workers suffer the 
same health effects as those pre-'71 workers, and should be afforded 
the same opportunity to receive the benefits that RECA contemplated for 
affected uranium workers.
VIII.  CONCLUSION
    Based on the Pueblo's experience with the Jackpile Mine, the Pueblo 
is opposed to any further mining on or near Pueblo lands. The Pueblo 
fears that the State of New Mexico, the U.S. Department of Agriculture, 
and the U.S. Forest Service will permit additional uranium exploration 
and mining because of the current high demand for uranium, fueled by 
dwindling uranium stockpiles from existing sources and new orders for a 
large number of nuclear-fueled power plants worldwide. The State of New 
Mexico is currently looking at re-opening several mining and milling 
sites to again mine and mill uranium in efforts to create more jobs and 
boast its economy. Because of these new efforts and the Pueblo's first-
hand experience in dealing with both the health and environmental 
impacts of mining uranium, and the fact that there would be new dangers 
from mining and milling of uranium to downwind and downstream water 
users, the Pueblo has taken steps to start developing its own air and 
quality standards.
    Many federal lands adjoin Indian Country and share water resources 
essential to the health and welfare of tribes. Therefore, the Pueblo 
believes that it is imperative that any new legislation include 
adequate environmental standards to protect the health and welfare of 
the adjoining tribal communities. In addition, the Pueblo would like to 
see the establishment of a Hardrock Reclamation account for the clean-
up of hardrock mines, and the establishment of a hardrock community 
impact assistance account fund.
    In closing, thank you for allowing the Pueblo to testify before 
this Committee. The Pueblo has been exploring the various options, 
alternatives, and opportunities to get funds to deal with the clean-up 
of the Jackpile-Paguate uranium mine site for years. What has been done 
with the limited resources that were made available from the settlement 
with the ARCO company was far less than what is needed to adequately 
deal with the health and environmental problems that still exist to 
this day at that site. We respectfully request the Committee's 
favorable consideration of amending the Surface Mining Control and 
Reclamation Act of 1977 to clarify that uncertified States and Indian 
tribes do have the authority to use certain payments for certain non-
coal reclamation projects. If you have any questions, please do not 
hesitate to contact m
                                 ______
                                 
    Mr. Costa. Thank you very much, Governor Antonio. When you 
show these maps as a part of your testimony, is it your 
understanding because you talked about pilings on sides of 
road, and I suspect there are also tailings on watershed areas, 
have these been prioritized to your knowledge either by the 
State of New Mexico or the Bureau of Indian Affairs or the 
Department of Energy as to which pose the greatest health risks 
to the affected tribal areas that you speak on behalf of?
    Mr. Antonio. OK. Right now, if you look at the map again, 
the Paguate Village, you can see just immediately to the right 
there or to the east you see the kind of the orange color? 
Well, that is a high-priority area because that is where the 
mine is located, again just right next to the village.
    Mr. Costa. OK.
    Mr. Antonio. A little bit south where you see that other 
red part, there is an old reservoir there, and that basically 
became a sediment entrapment for all the debris coming down 
through----
    Mr. Costa. OK. But this isn't just your views or the 
tribe's views, this is also reflected by the State of New 
Mexico and other people who have done risk assessments?
    Mr. Antonio. Yes. We have talked to the Legislature, the 
Governors and, of course, our Congressional representatives, 
and this is a priority area.
    Mr. Costa. All right. Let me go on, Ms. Pineda. I am glad 
that you cited in your testimony the sections in the existing 
law, 1977, and the changes that were made in the amendments of 
2006, and your argument basically is that the Department of the 
Interior now is not fulfilling what the original intent of 
Congress, is that correct?
    Mr. Antonio. Correct.
    Mr. Costa. I am talking to Ms. Pineda.
    Mr. Antonio. Excuse me. OK. Sorry.
    Ms. Pineda. Yes, and I guess I would further remark that 
originally in 1977 when SMCRA was created the funding comes 
from reclamation fees put on current coal operators, and every 
year money was collected and then appropriated back to the 
states, and over the past 25 to 30 years, not all of the money 
was necessarily appropriated back due to budget situations or 
whatever was occurring so the fund was accumulating in terms of 
money not being appropriated back to the states, so our 
argument is that had we been getting that money all along 
during the course of the last 30 years, we would have been able 
to be spending that money on non-coal projects or whatever.
    Mr. Costa. And I would argue that you are in the best 
position to make those determinations far better than we are 
here in Washington.
    Ms. Pineda. What the priorities are?
    Mr. Costa. Right.
    Ms. Pineda. I believe so, yes.
    Mr. Costa. And you have made assessments based upon hazards 
and risk assessment and risk management for health?
    Ms. Pineda. Yes. Yes, back in 1980 when we first received 
the AML program, Colorado in addition to all the other 30 
states and tribes did a national inventory, and in addition to 
that, we did a state inventory, so we have inventoried all the 
areas for both coal and hard rock so that we can determine 
where it is best to spend the money, whether it is on coal 
projects or on non-coal projects, so we are really kind of just 
asking for that flexibility for the states and tribes, and we 
may end up spending some funds on coal projects because some 
states have coal fires, subsidence issues that they need to 
deal with.
    We also recognize that we have these non-coal problems, so 
basically what the states are asking for is flexibility in that 
funding.
    Mr. Costa. Ms. Owens, you I think stated obviously the 
Administration's position and as I heard it particularly as it 
referenced your priorities for 2011 and what is in the budget, 
but is it your view that the amendments of 2006 allow the 
Department of the Interior the determination to set these 
priorities notwithstanding the monies that can be provided for 
states to make their own determinations? I mean, in this case, 
notwithstanding the goals of cleaning up coal mines, and I am 
not arguing that point.
    Obviously, there is a priority there, but also these funds 
were provided to have a breakdown for states and tribes to also 
be able to address their issues.
    Ms. Owens. Correct. Yes, that is true, Chairman Costa, and 
I just want to say that Section 409 of SMCRA was not amended in 
2006. It did then, and it does now allow the uncertified states 
and tribes to use their state and tribal share and also their 
historic coal share for non-coal reclamation. That hasn't 
changed. The states and tribes can continue to use those 
distributions for non-coal reclamation.
    Mr. Costa. But under that section, isn't it correct that 
the states and tribes also have two other funding segments 
within that they can utilize?
    Ms. Owens. Well, under 409, what they can use is the state 
and historic share, which is one distribution and also the 
historic coal share, which is a second distribution. What 
411[h][1] does is precludes the use of fire balance replacement 
funds by uncertified states on non-coal reclamation.
    Mr. Costa. All right. I may want to get back to that, but 
my time has expired. The Ranking Member, Congressman from 
Colorado, Doug Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman, and before I ask any 
questions, I would like to ask unanimous consent to include the 
Western Governors' Association Resolution that Ms. Pineda 
referred to and attached to her testimony.
    Mr. Costa. Without opposition, so ordered.
    Mr. Lamborn. For the record. OK. Thank you. Ms. Pineda, it 
is good to have you here. It is always good to talk to a fellow 
Coloradan, so thank you for your testimony. On a related issue, 
we have some Good Samaritan proposals that have been proposed 
here in Congress. I have one that has been proposed, for 
instance. You have experience with the Animas River Basin and 
Good Samaritan efforts. Can you tell us about that and how 
successful they have been?
    Ms. Pineda. Yes. The Animas River Stakeholders Group is a 
very active kind of local watershed in the Silverton area in 
San Juan County, and they have been promoting and doing several 
reclamation and remediation projects along the upper Animas. In 
terms of the Colorado AML program, what we have provided under 
SMCRA funds is just basically safeguarding hazards because that 
is really the only priority that we can use SMCRA funds for are 
kind of health and safety issues related to non-coal.
    In addition to that, we have partnered with the Bureau of 
Land Management and also the U.S. Forest Service to do several 
cleanup projects that have helped water quality issues along 
the upper Animas in terms of dealing with mine waste and mine 
tailings, so we have probably done over 50 reclamation 
remediation projects working along the Animas River doing kind 
of mine tailings and mine waster projects.
    The real challenge there is that because of liability 
issues under the Clean Water Act dealing with draining adits, 
adits that are draining, high-pollution, acid mind drainage, we 
are unable to really touch those because some of the liability 
provisions that are in the Clean Water Act, and no one really 
wants to have that liability long term, so the legislation put 
forward by yourself and others in Congress would hopefully 
amend the Clean Water Act so that we could have Good 
Samaritans, we could have state agencies, local governments, 
watershed groups, industry help and participate in those kinds 
of cleanups because they can be very expensive when you are 
looking at kind of long-term water treatment.
    In terms of SMCRA and the kinds of funding that we can use 
in that watershed, we have been able to help tremendously in 
safeguarding a lot of those sites and then using other funding 
that we were able to get to do the remediation work, and as you 
know, the Silverton area and in Leadville, in Idaho Springs, 
Central City, Clear Creek County, it is a very high-tourist 
area with a lot of people visiting the high country, so we want 
to make sure that they all have a very safe visit.
    Mr. Costa. What part of Colorado?
    Ms. Pineda. What?
    Mr. Costa. What part of Colorado?
    Ms. Pineda. All parts of Colorado.
    Mr. Lamborn. Silverton.
    Ms. Pineda. I am sorry. Silverton is the area that----
    Mr. Costa. No. That is lovely country. I just wanted to 
make sure I understood it.
    Ms. Pineda. Yes.
    Mr. Costa. What a lovely state I keep telling all my 
friends in Colorado.
    Ms. Pineda. Well, we want you to have a safe visit there.
    Mr. Costa. Of course. Go ahead. I am sorry to interrupt. I 
will add to your time.
    Mr. Lamborn. Anything to add to that about Good Samaritan 
legislation, or at this point I would like to open it up for 
either of the other two witnesses. I know that the intentions 
are good, but there are always unforseen consequences, and for 
a Good Samaritan to right now currently pick up liability when 
they are just trying to help out would discourage probably 100 
percent of anyone who would otherwise offer their services.
    Ms. Pineda. Right.
    Mr. Lamborn. Do any of our other two witnesses care to 
comment on that issue of Good Samaritan legislation?
    Ms. Owens. I am not familiar with the Good Samaritan 
legislation, so I wouldn't----
    Mr. Costa. I didn't hear you. I am sorry.
    Ms. Owens. I said that I am not familiar with the Good 
Samaritan legislation, so I couldn't speak to it.
    Mr. Costa. OK.
    Mr. Antonio. I understand Good Samaritan means somebody 
that is there to help out, so anybody that can help us out, we 
will take all the help we can get. Thank you.
    Mr. Lamborn. All right. Well, thank you all for being here 
and for your testimony. I yield back, Mr. Chairman.
    Mr. Antonio. Thank you very much.
    Mr. Costa. I really think at the crux of this, and I 
believe probably the legislation would not be necessary if it 
weren't for a Department of the Interior memorandum of opinion 
M-37014 that issued by the Solicitor on December 5, 2007, that 
interpreted the amendment to Section 411 to prohibit 
uncertified states and Indian tribes from unappropriated 
balance amounts for non-coal mine hazards, and it is this 
memorandum that has created the problem and has taken the 
discretion away from states like Colorado and tribes like yours 
with Laguna.
    The Department has already opined on the legislation, but 
frankly I guess that means they believe that the memorandum of 
understanding was appropriate, and that is where we differ. Mr. 
Heinrich, for your five minutes for comments or questions?
    Mr. Heinrich. Thank you, Chairman. Ms. Owens, I wanted to 
ask you as Congressman Teague mentioned earlier, most of the 
uranium sites in the southwest date to the Cold War era when 
our nation's uranium reserves were used to build up our nuclear 
arsenal. New Mexico's miners and mill workers, as well as the 
entire community really in Cibola and McKinley County, really 
played a critical role in our national security during that 
time, and many of us believe that they deserve recognition and 
compensation for the things that they have suffered along the 
way to produce at those uranium sites.
    I wanted to ask you if the Administration opposes the use 
of SMCRA funds for reclamation of uranium mines, how do you 
propose that we pay for the cleanup of these sites that were 
essential to our national security for decades?
    Ms. Owens. Well, Congressman Heinrich, as I said, there is 
a provision for some portion of the AML funding to be used for 
non-coal cleanup, and that is found in Section 409 of the Act. 
We recognize and appreciate the problems that are posed by non-
coal hazards. However, because of this Administration's focus 
on the cleanup of high-priority coal problems under SMCRA while 
we have the extension of the fund, we have to be supportive, 
and we do support that money being used for the high-priority 
coal cleanup.
    Mr. Heinrich. Ms. Pineda, I wanted to ask you other than 
SMCRA funds, what other Federal funds are available to your 
department for hard rock mine reclamation?
    Ms. Pineda. Thank you for that question. Currently, we do 
get funding from the Bureau of Land Management and also from 
the U.S. Forest Service. The issue with that funding though is 
that it is for BLM properties and U.S. Forest Service 
properties, so mostly on Federal land, so we still have a lot 
of unpatented claims or claims that are on private property 
that we still need to safeguard. We are very diligent and 
efficient in using all of the different kinds of funding that 
are available.
    In Colorado, I am lucky to also get some state funding that 
I can match with watersheds and other groups to do abandoned 
mine land cleanup, and I know that New Mexico, Utah and our 
other states and partners are all very diligent in getting as 
much funding as we can and to use it as efficiently as we can.
    Mr. Heinrich. If you add the funding stream that Ms. Owens 
mentioned to any state funding you have plus what is available 
through the BLM and the Forest Service, does it even begin to 
meet the unmet needs that you have in Colorado?
    Ms. Pineda. Well, currently we have 23,000 abandoned mines 
in Colorado, so we are very cognizant of the fact that we have 
to prioritize because we will probably never be able to really 
reach every problem, and not only do we have safeguarding, but 
as Congressman Lamborn mentioned, we have acid mine drainage 
problems, and a lot of other problems that would require 
enormous amounts of funding.
    I can assure you that all of the states and tribes that are 
involved in getting abandoned mine funding for coal or for non-
coal are very diligent in working with local governments and 
watershed groups and just trying to partner and make the 
dollars go as far as they can, and a lot of this money also 
does translate into jobs and to other opportunities for local 
communities.
    Mr. Heinrich. Thank you. Governor Antonio, I wanted to ask 
in addition to some of the health issues you mentioned, cancer 
and other diseases that mine workers and their families have 
experienced, are there currently issues with water 
contamination with the Pueblo's water supplies because of the 
Jackpile Mine?
    Mr. Antonio. We are concerned in that close proximity there 
because of the groundwater contamination. I know in the history 
of the mine there were some potable water that eventually was 
abandoned because of that contamination, so we are concerned. 
There are some reported high levels of contamination in some of 
the water, but we have to constantly monitor those.
    Mr. Heinrich. Thank you, Governor. Mr. Chair, I will finish 
up just by asking unanimous consent to be able to add to the 
record a letter that I have from the New Mexico legislation, 
which has worked on this issue for many years.
    Mr. Costa. Without objection, so ordered. Let me just close 
by saying clearly, Ms. Owens, as you indicated, the states and 
tribes do have the utilization of the other two sources of 
funding as I noted and you pointed out, but the dispute here is 
really on the other source of funding here in which prior that 
memorandum states and tribes, as I understand it, did have the 
discretionary use of those funds.
    As I look down the breakdown here in the last fiscal year, 
for the State of Colorado, and I am going to round the numbers 
out a bit, but under the state's share, they got $1,855,000 on 
the state's share, on the historical share on the coal, 
Colorado got $1.26 million, but the larger share, the prior 
balance replacement funds that Director Pineda spoke about was 
$4.2 million, or 58 percent of the total, of which they have no 
discretion and thus the purpose of their testimony here today, 
and the same thing with New Mexico.
    New Mexico got $1.1 million of the state's share, $308,00 
of the historical coal share, but the largest share, $3 million 
plus from the prior balance replacement funds are 66 percent. 
The State of New Mexico has no ability to utilize in a way that 
they thing would be best for its tribes and for its priorities 
within the state and vis-a-vis going back to the memorandum 
again, therein lies the rub, and that is why they want to 
pursue this legislation.
    Ms. Owens. I just want to make one comment on that 
memorandum that you refer to. The memorandum didn't make the 
law. It merely interpreted it.
    Mr. Costa. I know, and I am glad you raised that because 
let us put a fine point on it. I am one regardless if it is a 
Democratic or Republican Administration get a little tired, I 
am being polite this morning, I am in a good mood, I get a lot 
more than tired, but I get frustrated when any Executive Branch 
decides that they are going for their own purposes interpret 
the will of Congress that I think is in direct conflict with 
what that will of Congress was and the clarity of it, and what 
you are saying is well, notwithstanding the law, we take a 
broad interpretation. We have issued this memorandum, and these 
are our priorities.
    Ms. Owens. Actually, Chairman, I am not saying that we take 
a broad interpretation of the law. I am saying that the 
memorandum opinion read the two provisions that said that the 
money could be used for 402[g][1], which is the state and 
tribal share, and for 402[g][5], which is the historic coal 
share. That is all it did. It said what this allows you to do 
is use this money, and what this allows you to do is use the 
other money, and weren't attempting to do anything more than 
that.
    Mr. Costa. Well, the net effect of that as it breaks down 
the dollars that are available, in essence, then the majority 
of the funds--at least as I saw this breakdown in this fiscal 
year for the States of Colorado, New Mexico and Utah--the 
majority of the funds are going for the priorities that the 
Department of the Interior has established and not necessarily 
the priorities that the states and the tribes have established. 
I think that is why we had this legislation introduced.
    It is a problem. We are going to have to continue to work 
on this I believe, and I commend my colleagues for raising this 
issue once again. As I said, a previous measure was introduced 
that first raised this issue, and we are going to have to work 
this out. That is the bottom line. I want to thank all the 
witnesses for their testimony. I thank the staff, my Republican 
colleagues and their staff members for the fine job you do in 
the event that this is our last hearing for the session.
    Once again, we want to congratulate Deborah Lanzone and 
Wendy Van Asselt for the good work that they have done, and we 
wish you the very best, and obviously we continue to look 
forward to working with everyone as we try to deal with the 
problems that this Subcommittee faces on energy and minerals 
for our nation on public lands. This Subcommittee is now 
adjourned. Thank you.
    [Whereupon, at 11:14 a.m., the Committee was adjourned.]

[ NOTE: The following documents submitted for the record have been 
        retained in the Committee's official files.]

          Heaton, Hon. John A., State Representative, 
        New Mexico State Legislature, Letter dated September 
        20, 2010, addressed to Chairman Jim Costa.
          Indall, John J. and Adela M. Duran, Counsel, 
        Uranium Producers of New Mexico, Testimony and 
        attachments dated September 23, 2010.
          Richardson, Hon. Bill, Governor, State of New 
        Mexico, Testimony dated September 23, 2010.