II 114th CONGRESS 2d Session S. 2950 IN THE SENATE OF THE UNITED STATES May 18, 2016 Mr. Gardner (for himself and Mr. Hatch ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To require the Administrator of the Environmental Protection Agency to receive, process, and pay certain claims relating to the Gold King Mine spill.

1. Short title This Act may be cited as the Gold King Accountability and Compensation for Taxpayers or the Gold King ACT . 2. Findings Congress finds that— (1) on August 5, 2015, the Environmental Protection Agency caused the release of approximately 3,000,000 gallons of contaminated water from the Gold King Mine into Cement Creek; (2) the Environmental Protection Agency takes full responsibility for the Gold King Mine spill; (3) the peer reviewer of the Corps of Engineers to the report of the Department of the Interior relating to the Gold King Mine spill expressed concerns about the independent nature of the report and the internal communications and decisions of the Environmental Protection Agency relating to the spill; (4) the Environmental Protection Agency should be held to the same standards as the private sector would be if the private sector caused a similar spill; (5) the Environmental Protection Agency should hold accountable those individuals responsible for the Gold King Mine spill; and (6) since response activities took place after October 31, 2015, the Environmental Protection Agency should reimburse requests for response activity expenses incurred after that date. 3. Definitions In this Act: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) 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. (3) Independent contractor The term independent contractor means any person, as of August 5, 2015, that— (A) entered into a contract with a Federal agency (as defined in section 2671 of title 28, United States Code) for goods or services relating to the Gold King Mine spill; and (B) was not an employee of the Government (as defined in section 2671 of title 28, United States Code). (4) Injured person The term injured person means a person that— (A) suffered injury resulting from the Gold King Mine spill; and (B) is— (i) an individual; (ii) an Indian tribe, tribal corporation, or other tribal organization; (iii) 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 (iv) a legal representative of an individual or entity described in any of clauses (i) through (iii). (5) Injury 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. 4. Gold King Mine spill claims pursuant to the Federal Tort Claims Act (a) Responsibilities of the Administrator (1) In general An injured person may bring a claim arising out of, or relating to, any injury resulting from the Gold King Mine spill under chapter 171 of title 28, United States Code (commonly known as the Federal Tort Claims Act ) and the Administrator shall receive, process, and pay those claims in accordance with this section. (2) Timing (A) In general Notwithstanding section 2675(a) of title 28, United States Code, not later than 90 days after the date on which an injured person submits to the Administrator a claim under this section, the Administrator shall award or deny the payment of the claim. (B) Partially paid claims In the case of a claim for which, as of the date of enactment of this Act, the Administrator has partially awarded payment to an injured person, the Administrator shall award the remaining payment not later than 60 days after that date of enactment. (C) Previously filed claims In the case of a claim for which, as of the date of enactment of this Act, not fewer than 90 days have passed since the date on which an injured person submitted to the Administrator a claim under this section, not later than 60 days after that date of enactment, the Administrator shall award or deny payment of the claim. (b) Applicability of other law (1) Applicability of exception Section 2680(a) of title 28, United States Code, shall not apply to claims brought under this section. (2) Independent contractors For purposes of a claim brought under this section, the definition of the term Federal agency under section 2671 of title 28, United States Code, shall be considered to include an independent contractor. (c) Allowable damages (1) Property loss 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) a cost resulting from lost tribal or nontribal 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; (B) 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; (C) any costs borne by any injured person to determine the extent of— (i) the damages to agricultural land; or (ii) any other damages covered by this Act; (D) 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 (E) any other loss that the Administrator determines to be appropriate for inclusion as loss of property. (2) 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 business loss: (A) Damage to tangible assets or inventory. (B) Lost business income. (C) Overhead costs. (D) Employee wages for work not performed. (E) Any other loss that the Administrator determines to be appropriate for inclusion as a business loss. (3) Financial 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: (A) An insurance deductible. (B) Lost wages or personal income. (C) Emergency staffing expenses. (D) Debris removal and other cleanup costs. (E) Any other loss that the Administrator determines to be appropriate for inclusion as a financial loss. (d) Recoupment for improper payments Notwithstanding any other provision of law, during the 13-year period beginning on the date on which a claim is awarded under this section, the Administrator may take such action as is necessary to recover payments made under this section with respect to fraudulent claims and claims made with inaccurate information. (e) Source of payments (1) In general Any compensation or award against the Government made pursuant to a claim under this section shall be paid by the Administrator from unobligated balances in the appropriations accounts of the Environmental Protection Agency. (2) Intent of Congress It is the intent of Congress that no additional funds be appropriated to carry out this Act. 5. Gold King Mine spill claims pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (a) In general The Administrator shall, consistent with the national contingency plan, receive, process, and pay under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ) claims related to the Gold King Mine spill. (b) Eligible claims The Administrator shall receive, process, and pay under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ) claims related to the Gold King Mine spill that otherwise would be ineligible under that Act or the national contingency plan if the response action carried out by the claimant is not inconsistent with the national contingency plan as described in section 107 of that Act ( 42 U.S.C. 9607 ). (c) Timing (1) In general Not later than 90 days after the date on which an injured person submits to the Administrator a claim under this section, the Administrator shall award or deny the payment of the claim. (2) Partially paid claims In the case of a claim for which, as of the date of enactment of this Act, the Administrator has partially awarded payment to an injured person, the Administrator shall award the remaining payment not later than 60 days after that date of enactment. (3) Previously filed claims In the case of a claim for which, as of the date of enactment of this Act, not fewer than 90 days have passed since the date on which an injured person submitted to the Administrator a claim under this section, not later than 60 days after that date of enactment, the Administrator shall award or deny payment of the claim. 6. Effect of Act; reduction in payment (a) Effect of Act This Act does not diminish the ability of the Administrator to carry out the responsibilities of the Administrator under any other provision of law. (b) Reduction in payment To prevent a claimant from receiving twice the damage award for the same injury or claim— (1) any compensation or award against the Government under section 4 shall be deducted from any payment awarded against the Government under section 5; and (2) any compensation or award against the Government under section 5 shall be deducted from any payment awarded against the Government under section 4. 7. Water quality program (a) In general In response to the Gold King Mine spill, the Administrator, in coordination with affected States and Indian tribes, shall develop and implement a program for long-term water quality monitoring of the Animas River. (b) Requirements In carrying out the program described in subsection (a), the Administrator shall— (1) collect water quality samples and sediment data; (2) provide the public with a means of viewing the samples and data referred to in paragraph (1) by, at a minimum, posting the information on the website of the Administrator; (3) take any other relevant measure necessary to assist affected States and Indian tribes with long-term water monitoring; and (4) carry out additional program activities, as determined by the Administrator.