114 HR 4483 IH: Gold King Mine Spill Accountability Act of 2016 U.S. House of Representatives 2016-02-04 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 114th CONGRESS 2d Session H. R. 4483 IN THE HOUSE OF REPRESENTATIVES February 4, 2016 Mr. Pearce introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committees on the Judiciary, Rules, Energy and Commerce, and Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To appoint a special investigator to determine the role of the Environmental Protection Agency in the Gold King Mine spill and its downstream environmental effects, provide compensation to injured persons, fund certain long-term water quality monitoring programs, and for other purposes.

1.

Short Title

This Act may be cited as the Gold King Mine Spill Accountability Act of 2016.

2.

Special Investigation of Environmental Protection Agency Role in Gold King Mine Spill

(a)

Appointment

Not later than 30 days after the date of enactment of this Act, the Attorney General shall appoint a special investigator, dedicated full time, to conduct an investigation in order to determine— (1)who was at fault for the Gold King Mine spill; (2)which individuals were responsible for the decisions that led to the spill; and (3)what downstream environmental effects were caused by the actions of the Environmental Protection Agency, or the Environmental Protection Agency’s failure to take action, after the Gold King Mine spill. (b)

Compensation from Environmental Protection Agency

The special investigator shall be compensated for expenses incurred in the course of conducting the investigation under subsection (a) by amounts provided in advance in appropriation Acts to the Administrator. The special investigator shall be paid at a rate not to exceed the rate of basic pay for GS–14 of the General Schedule. If the special investigator is a full-time officer or employee of the United States, the special investigator may not receive additional pay, allowances, or benefits by reason of his or her service as a special investigator under this section. (c)

Authorities of special investigator

(1)

Staff

The special investigator may appoint and fix the pay of additional personnel as the special investigator considers appropriate. Staff members appointed by the special investigator under this paragraph who are full-time officers or employees of the United States may not receive additional pay, allowances, or benefits by reason of their service to the special investigator. (2)

Staff of Federal agencies

Upon the request of the special investigator, the head of any Federal department or agency may detail any of the personnel of that department or agency to assist the special investigator in carrying out his or her duties under this section. (3)

Obtaining official data

The special investigator may secure directly from any department or agency of the United States information necessary to enable the special investigator to carry out this section. Upon the request of the special investigator, the head of that department or agency shall furnish that information to the special investigator. (4)

Subpoena Power

(A)

In general

The special investigator may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter that the special investigator is empowered to investigate under this section. The attendance of witnesses and the production of evidence may be required from any place within the United States at any designated place of hearing within the United States. (B)

Failure to obey a subpoena

If a person refuses to obey a subpoena issued under subparagraph (A), the special investigator may apply to a United States district court for an order requiring that person to appear before the special investigator to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt. (C)

Service of subpoenas

The subpoenas of the special investigator shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts. (D)

Service of process

All process of any court to which application is made under subparagraph (B) may be served in the judicial district in which the person required to be served resides or may be found. (d)

Report of Findings and Conclusions to Congress

(1)

Report of findings

Not later than 180 days after the date on which the special investigator is appointed, the special investigator shall submit to Congress a report containing the results of the investigation under subsection (a). (2)

Report of GAO audit

Not later than 180 days after the date on which a report is submitted under paragraph (1), the Comptroller General shall submit to Congress a report containing the results of an audit of the investigation, to determine whether— (A)the investigator appointed had any conflict of interest relating to the subject matter of the investigation or with the Environmental Protection Agency; and (B)the findings are based on substantiated scientific evidence, as applicable. (3)

Recipients

(A)The Speaker of the House of Representatives shall refer the reports submitted under paragraphs (1) and (2) to the following: (i)The Committees on Science, Space, and Technology, Natural Resources, and Oversight and Government Reform of the House of Representatives. (ii)Each Member of the House of Representatives representing a district that includes the Animas and San Juan River watersheds or any affected area downstream of the Gold King Mine. (B)The President pro tempore of the Senate shall refer the reports submitted under paragraphs (1) and (2) to the following: (i)The Committees on Energy and Natural Resources and Environment and Public Works of the Senate. (ii)Each Member of the Senate representing a State that includes the Animas and San Juan River watersheds or any affected area downstream of the Gold King Mine. (e)

Termination

The authority of the special investigator shall terminate upon submission of the report under subsection (d)(1).

3.

Compensation for Victims of Gold King Mine Spill

(a)

Federal tort claims

(1)

In general

Subject to paragraph (2), 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. (2)

Nonapplicability of limitation

Notwithstanding section 2672 of title 28, United States Code, the Administrator may provide compensation for a claim under this section 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. (b)

Office of Gold King Mine Spill Claims

(1)

Establishment

There is established within the Environmental Protection Agency an Office of Gold King Mine Spill Claims, in this subsection referred to as the Office. (2)

Purpose

The Office shall receive, process, and pay claims in accordance with this section. (3)

Treatment

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. (4)

Detailees

Upon the 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 this section. (c)

Allowable damages

(1)

Property loss

A claim that is paid for loss of property under this section may include damages resulting from the Gold King Mine spill for— (A)any 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 using water damaged by the Gold King Mine spill; (B)any 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 section; (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 a business loss under this section may include damages resulting from the Gold King Mine spill for— (A)damage to tangible assets or inventory; (B)business interruption losses; (C)overhead costs; (D)employee wages for work not performed; and (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 a financial loss under this section may include damages resulting from the Gold King Mine spill for— (A)an insurance deductible; (B)lost wages or personal income; (C)emergency staffing expenses; (D)debris removal and other cleanup costs; and (E)any other loss that the Administrator determines to be appropriate for inclusion as a financial loss. (4)

Non-limitation

The losses described in paragraphs (1) through (3) do not limit any compensation that is otherwise available under chapter 171 of title 28, United States Code. (d)

Compensation

(1)

In general

Any claim for damages compensated under this section during a fiscal year shall be paid from unobligated funds appropriated to the Environmental Protection Agency for that fiscal year. (2)

Rollover

To the extent that a claim exceeds the amount of unobligated funds available in that fiscal year, the remainder of the claim shall be paid from unobligated funds in the first subsequent fiscal year in which sufficient unobligated funds are available to satisfy such remainder. (e)

Definitions

In this section: (1)

Injured person

The term injured person means a person who suffered injury resulting from the Gold King Mine spill. (2)

Injury

The term injury includes any injury for which compensation may be provided under chapter 171 of title 28, United States Code, that is 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. (3)

Person

The term person means a person who is eligible to bring a claim under chapter 171 of title 28, United States Code, and may include— (A)an individual; (B)an Indian tribe, tribal corporation, or other tribal organization; (C)a non-Federal entity, including a corporation, business, partnership, company, association, insurer, ditch company, water district, and water company; (D)a State or political subdivision of a State, including a county, township, city, school district, and special district; (E)the Animas-La Plata Operation, Maintenance, and Replacement Association; or (F)a legal representative of an individual or entity described in any of subparagraphs (A) through (E).

4.

Gold King Mine Spill response program

(a)

In general

Subject to the requirements of subsection (b), the Administrator shall fund the implementation of the long-term monitoring program developed by the Long-Term Impact Review Team of the State of New Mexico for the water quality of the Animas and San Juan Rivers. (b)

Requirements

In order to be funded by the Administrator under subsection (a), the long-term monitoring program shall— (1)provide full disclosure to the public of applicable water quality and sediment data; (2)enable clear and meaningful comparison between those data and all relevant water quality standards; and (3)meet such other conditions as the Administrator may require to administer the program.

5.

Prohibition of Rule making

(a)

In general

Except as provided under subsection (b), the Administrator may not finalize a rule or engage in a rule making (as such terms are defined in section 551 of title 5, United States Code) until all claims processed under section 3 have been paid in full, as applicable. (b)

Exceptions

The prohibition under subsection (a) shall not apply with respect to— (1)such rules as may be required in order to implement this Act; and (2)any rule that the Administrator determines necessary to address an imminent threat to public health or safety, or other emergency.

6.

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.