IN THE SENATE OF THE UNITED STATES
September 22, 2015
Mr. Udall (for himself, Mr. Heinrich, and Mr. Bennet) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To provide compensation to injured persons relating to the Gold King Mine spill, to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to address mining-related issues, and for other purposes.
This Act may be cited as the
Gold King Mine Spill Recovery Act of 2015.
Congress finds that—
on August 5, 2015, approximately 3,000,000 gallons of contaminated water was discharged from the Gold King Mine north of Silverton, Colorado, into Cement Creek, a tributary of the Animas River, while contractors of the Environmental Protection Agency were conducting an investigation of the mine—
to assess the ongoing water releases from the mine;
to treat mine water; and
to assess the feasibility of further mine remediation;
the plume of contaminated water resulting from the discharge described in paragraph (1)—
was found to contain high levels of heavy metals, including aluminum, arsenic, cadmium, cobalt, copper, iron, lead, manganese, mercury, molybdenum, nickel, and zinc; and
flowed through the Animas River, the San Juan River, and Lake Powell;
as of the date of enactment of this Act, with respect to the discharge described in paragraph (1)—
state of emergency declarations have been made by—
the States of Colorado, New Mexico, and Utah; and
the Navajo Nation; and
a declaration of disaster has been issued by the Southern Ute Indian Tribe; and
on August 11, 2015, Administrator of the Environmental Protection Agency Gina McCarthy stated that the Environmental Protection Agency will take full responsibility for the discharge described in paragraph (1).
In this Act:
The term Administrator means the Administrator of the Environmental Protection Agency.
Gold King Mine spill
The term Gold King Mine spill means the discharge on August 5, 2015, of approximately 3,000,000 gallons of contaminated water from the Gold King Mine north of Silverton, Colorado, into Cement Creek that occurred while contractors of the Environmental Protection Agency were conducting an investigation of the Gold King Mine.
The term injured person means a person that—
suffered injury resulting from the Gold King Mine spill; and
an individual, regardless of the citizenship or alien status of the individual;
an Indian tribe, tribal corporation, or other tribal organization;
a corporation, business, partnership, company, association, insurer, county, township, city, State or political subdivision of a State, school district, ditch company, special district, water district, water company, the Animas-La Plata Operation, Maintenance and Replacement Association, or other non-Federal entity; or
a legal representative of an individual or entity described in any of clauses (i) through (iii).
The term injury means any damage to, or loss of, property, or a personal injury or death, caused by a negligent or wrongful act or omission of a Federal officer, employee, contractor, or subcontractor while acting within the scope of office, employment, or contract, under circumstances in which the Federal officer, employee, contractor, or subcontractor, if a private person, would be liable to the claimant in accordance with the law of the jurisdiction in which the act or omission occurred.
The term Office means the Office of Gold King Mine Spill Claims established by section 4(b)(1).
Compensation for victims of Gold King Mine spill
Federal tort claims
Subject to paragraph (4), each injured person shall be entitled to receive from the United States compensation for a claim filed, or civil action brought, under chapter 171 of title 28, United States Code (commonly known as the
Federal Tort Claims Act), arising out of, or relating to, an injury resulting from the Gold King Mine spill.
Effect of acceptance
The acceptance by an injured person of compensation under paragraph (1) shall have the same effect as acceptance of compensation under chapter 171 of title 28, United States Code (commonly known as the
Federal Tort Claims Act), or any other Federal or State law, arising out of or relating to the Gold King Mine spill.
The Administrator and the Attorney General shall process a claim filed, or civil action brought, pursuant to paragraph (1) as expeditiously as practicable.
Nonapplicability of limitation
With respect to any claim under this Act arising out of, or relating to, an injury resulting from the Gold King Mine spill—
the maximum amount limitation on claims described in the proviso of the first sentence of section 2672 of title 28, United States Code, shall be waived; and
the Administrator may provide compensation for the claim in an amount greater than $25,000 without prior written approval of the Attorney General (or a designee), as the Administrator determines to be appropriate.
Office of Gold King Mine Spill Claims
There is established within the Environmental Protection Agency an Office of Gold King Mine Spill Claims.
The Office shall receive, process, and pay claims in accordance with this section.
The establishment of the Office by this subsection shall not diminish the ability of the Administrator to carry out the responsibilities of the Environmental Protection Agency under any other provision of law.
On request of the Administrator, the head of any Federal department or agency may detail, on a reimbursable basis, any personnel of that department or agency to the Office to assist in carrying out the duties under this Act.
A claim that is paid for loss of property under this section may include otherwise-uncompensated damages resulting from the Gold King Mine spill for—
a cost resulting from lost tribal subsistence from hunting, fishing, firewood gathering, timbering, grazing, or agricultural activities, or from lost use for traditional or ceremonial uses, conducted on land or water damaged by the Gold King Mine spill;
a cost of reforestation or revegetation on tribal or non-Federal land, to the extent that the cost of reforestation or revegetation is not covered by any other Federal program;
any costs borne by any injured person to determine the extent of—
the damages to agricultural land; or
any other damages covered by this Act;
any costs borne by an injured person to pay for water supplies or equipment to treat water during the period for which a water supply of the injured person was compromised by the Gold King Mine spill; and
any other loss that the Administrator determines to be appropriate for inclusion as loss of property.
A claim that is paid for an injury under this section may include damages resulting from the Gold King Mine spill for the following types of otherwise-uncompensated business loss:
Damage to tangible assets or inventory.
Business interruption losses.
Employee wages for work not performed.
Any other loss that the Administrator determines to be appropriate for inclusion as a business loss.
A claim that is paid for an injury under this section may include damages resulting from the Gold King Mine spill for the following types of otherwise-uncompensated financial loss:
An insurance deductible.
Lost wages or personal income.
Emergency staffing expenses.
Debris removal and other cleanup costs.
Any other loss that the Administrator determines to be appropriate for inclusion as a financial loss.
Long-term water quality monitoring program; sense of Congress
Gold King Mine spill response program
The Administrator shall work with affected States and Indian tribes to develop, fund, and implement a long-term monitoring program for water quality of the Animas and San Juan Rivers in response to the Gold King Mine spill.
The program under paragraph (1) shall provide—
full disclosure to the public of applicable water quality and sediment data; and
a clear and meaningful comparison between those data and all relevant water quality standards.
Sense of Congress
It is the sense of Congress that the Administrator should—
consult with all local communities along the Animas and San Juan Rivers affected by the Gold King Mine spill, the Navajo Nation, the Southern Ute Indian Tribe, and the States of Colorado and New Mexico to determine whether it is appropriate to seek a designation for the Upper Animas River watershed on the National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.); and
prioritize the construction of a water treatment plant in the Upper Animas River basin to significantly reduce the ongoing heavy metal discharge into the Animas River from Cement Creek.
Amendment to CERCLA
Title I of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) is amended by adding at the end the following:
The Administrator, the Secretary of Agriculture, and the Secretary of the Interior, in coordination with the Governors of affected States, the heads of appropriate research universities, and the heads of other relevant Federal departments and agencies, shall—
not later than 180 days after the date of enactment of this section, review known, existing abandoned and inactive mines—
to identify the most dangerous abandoned and inactive mines on public land and private land with respect to the existence of pollution and the potential to release any hazardous substance or other pollutant, particularly with respect to contamination of water; and
to establish a priority plan for activities for removal and remediation of the hazardous substances and other pollutants;
periodically thereafter, as appropriate, update the priority plan established under paragraph (1)(B) as new information becomes available; and
develop a long term research initiative to evaluate the physical, chemical, and geological attributes of closed, abandoned, and inactive mines and pursue technological developments to aid in the cleanup of those mines.
Actions prior to certain activities
Before conducting any activity at a mine that presents the significant potential for accidental discharge of a hazardous substance or other pollutant, the Administrator or the head of any other Federal department or agency carrying out an activity for mine remediation shall—
provide to each tribal, State, and local unit of government the resources or residents of which may be affected by such a discharge notice regarding the activity; and
develop a spill prevention, control, and countermeasures plan to avoid and mitigate the impacts of such a discharge.
Effect of Act
Nothing in this Act (or an amendment made by this Act) provides for compensation of any injured person pursuant to this Act (or an amendment made by this Act) from the Hazardous Substances Superfund established by section 9507(a) of the Internal Revenue Code of 1986.