[Congressional Record Volume 146, Number 75 (Thursday, June 15, 2000)]
[Senate]
[Pages S5255-S5262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DOMENICI (for himself, and Mr. Bingaman):
  S. 2736. A bill to provide compensation for victims of the fire 
initiated by the National Park Service at Bandelier National Monument, 
New Mexico; to the Committee on Environment and Public Works.


                  the cerro grande fire assistance act

  Mr. DOMENICI. Mr. President, let me say from the very beginning of 
this discussion today, it has been a real pleasure to work with Senator 
Bingaman and his staff--and I hope that is mutual--on putting together 
a bill that we are going to introduce today. It is our best effort to 
put together a bill that permits the citizens of Los Alamos, the people 
who reside there, whose houses or personal property were damaged or 
destroyed, and businesses that existed, owned either by corporations or 
individuals--the damage they might have suffered. This is just a 
partial list. I will read the list before we leave the floor.
  This is an effort to compensate the Indian people for similar losses.
  Mr. President, since May 4, 2000, it is now known that the National 
Park Service started a forest fire, a so-called prescribed burn, at 
Bandelier National Monument in New Mexico. That was done during the 
height of the fire season and, regrettably, as everyone now knows, that 
fire, which was expected to be a controlled burn by the Park Service in 
Bandelier National Park, was not able to be controlled by those who 
were called in to control it. The fire went right down the 
mountainside, ended up burning down the forest and parts of the 
community of Los Alamos. The fire destroyed more than 425 residences.

  I am going to start from the beginning with just one photo. Senator

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Bingaman has others. He drove the streets while some of the fires were 
still cooling off. As I understand it, Senator Bingaman could see the 
remnants of steam and heat, and the residue of fires that had not yet 
totally burned out.
  This is just one picture of the old town site. That means there is a 
part of the area that was built up by the Federal Government years ago 
when Los Alamos was a closed off and secret community, at which the 
first atomic bomb was being built. All of the science was put in place 
up there, and it was totally a secret city. Years later, while I was a 
Senator--I have been here 28 years--we tore down the walls and sold 
those houses to individuals.
  This is the way the fire looked as a house burned adjoining the trees 
and forests that surround Los Alamos. It was actually much worse than 
that. But that is the best we can do in a photograph of this type.
  The fire started on May 4, and by May 5 it was a full-fledged 
wildfire devouring everything in its path. Ultimately, it devoured 
48,000 acres of forest land and significant parts of the community 
where houses and businesses were owned by individuals.
  During the time this fire burned out of control, our Nation was 
celebrating the 50th anniversary of Smokey the Bear; that is, the date 
of his rescue from a raging forest fire in the Lincoln National Forest 
in NM.
  For 50 years, Smokey the Bear had cautioned Americans to be careful. 
Apparently, no one told the Park Service.
  The decision was made to start a forest fire. The basis was a 
miscalculation of the danger. The result was, believe it or not, about 
25,000 people were evacuated; 405 families lost their residences or 
homes; two Indian pueblos lost land, livelihood, and sacred sites; and 
48,000 acres were transformed from a lush forest into a charcoal garden 
covered in some places by 12 inches of ash.
  The cost thus far to taxpayers just to fight the fire is perhaps $10 
million.
  We now have a couple of official reports. We have a 40-page report 
called ``Sierra Grande Prescribed Burn Investigative Report'' dated May 
18, 2000. It can be summarized.
  Too little planning; too few followed procedures; too little caution; 
too little experience; too much dry underbrush; too much wind; too much 
advice unheeded; and too late arrival of the ``hotshot'' experts; and, 
it was too bad.
  It is more than too bad. It calls into question the policy with 
reference to prescribed burns. But that is an issue for another day. 
But I am hopeful that serious discussions are taking place as to how we 
should handle controlled burns in the future.
  We have a catastrophe. It is a catastrophe that it started in the 
first place. There is no doubt about that.
  It is a tragedy that it destroyed homes. There is no doubt about 
that.
  It is a disaster that fire disrupted businesses. It cost State and 
local governments millions of dollars. There is no disagreement about 
that.
  Imagine the horror of seeing your home reduced to ashes and the 
freakishness of owning a concrete staircase to nowhere and calling it 
your home as you come back to visit. The house is burned to the ground, 
and only cement steps remain.
  Imagine seeing your neighborhood reduced to a row of brick chimneys 
and concrete foundations.
  Consider the irony of a home burned to the ground while the wooden 
tree house stands unoccupied in the yard.
  Imagine the task of sifting through the ashes for any unincinerated 
remnants of your life.
  Think about the gawkers and the TV trucks driving through your 
neighborhood waiting to see if the first rains produce mudslides and/or 
floods.
  Imagine your life if you were they.
  You want to go back to work, to get the kids back into a routine, but 
your life is a series of back-to-back-meetings, dealing with 
appraisers, contractors, insurance, FEMA, SBA, and flood insurance.
  Everyone involved wishes that the fire could be unset, the match 
unlit, the decision unmade, but there is no way to undo the 
catastrophe.
  The Federal Government can't undo the damage, but it can provide 
prompt compensation. That is the objective of the legislation that 
Senator Bingaman and I are introducing today. We have worked closely 
with the administration, and I am pleased that they support this 
legislation.
  I am pleased to introduce legislation that starts the process of 
rebuilding lives. It provides an expedited settlement process for the 
victims of the fire.
  The first estimate of the cost that we are covering is an approximate 
number of $300 million. We will use $300 million as our approximate 
cost as we take this bill into conference on the MILCON bill and 
attempt to get it adopted in an expedited matter as part of that 
conference, along with the moneys needed to compensate the victims for 
their claims under this legislation. And there are moneys for other 
components of the fire under other federal programs--$134 million for 
the laboratory damage itself, which is a separate appropriations item.
  To accomplish the goal of compensating fire victims in the most 
efficient and fair way possible, this legislation establishes a 
compensation process through a separate Office of Cerro Grande Fire 
Claims at FEMA.
  It provides for full compensation for property losses and personal 
injuries sustained by the victims, including all individuals, 
regardless of their immigration status, small businesses, local 
governments, schools, Indian tribes, and any other entities injured as 
a result of the fire.
  Such compensation will include the replacement cost of homes, cars, 
and any other property lost or damaged in the fire, as well as lost 
wages, business losses, insurance deductibles, emergency staffing 
expenses, debris removal and other clean-up costs, and any other losses 
deemed appropriate by the Director of FEMA.
  To make sure that this is an expedited procedure, within 45 days of 
enactment, FEMA must promulgate rules governing the claims process. 
After the rules are in place, FEMA must publish in newspapers and other 
places in New Mexico, an easy-to-understand description of the claims 
process in English and Spanish, so that everyone will know their rights 
and where and how to file a claim.
  Once those rules are in place, victims will have 2 years to file 
their claims, and FEMA must pay those claims within 6 months of filing.
  During the adjudication of each claim, FEMA is authorized to make 
interim payments to victims so that those with the greatest need will 
not be forced to wait a long time before receiving some form of 
compensation from the government.
  This bill also will reimburse insurance companies for the costs they 
paid to help rebuild Los Alamos and the surrounding communities. Under 
this bill, insurance companies will be able to make subrogation claims 
against the government on behalf of themselves or their policyholders 
in same manner as any other victim of the fire.
  I want the victims to know that this bill requires that they will 
compensated before insurance companies.

  The intent is to encourage insurance companies to settle with their 
policyholders and then come to the government for compensation. That 
way, victims can get on with their lives as soon as possible, and 
insurance companies can get reimbursed through the claims process 
without the need to proceed under the cumbersome Federal Tort Claims 
Act.
  For victims whose insurance will not cover the complete replacement 
cost of their property loss or their personal injury, insurance 
companies should cover all that is required under their policies, and 
the government will make up the difference.
  Mr. President, I think that in this bill, we have developed a process 
which is fair, comprehensive, and efficient. Yet there will be some who 
believe, for whatever reasons, that they are not receiving what they 
are entitled from the government.
  For those individuals, this bill preserves their right to sue under 
the Tort Claims Act or to protest the final claims decision of FEMA. I 
hope that there will be few, if any, such lawsuits, but I believe we 
must maintain the rights of individuals to proceed to court if they are 
unhappy with their claims award.
  I think we have taken an excellent first step in proposing this 
claims legislation. There is no way one bill can address every issue 
which might arise in every circumstance. Many of the details will be 
determined by the Fire

[[Page S5257]]

Claims Office. I want my constituents to know that I will do all I can 
to monitor the process as it moves forward to ensure that New Mexicans 
are treated fairly and in accordance with the intent of this law.
  All our citizens owe a tremendous gratitude to the workers at Los 
Alamos. We won the cold war because of their contributions. Today we 
enjoy our freedoms because of their dedication. We need their continued 
dedication to assure that those freedoms survive for our future 
generations. And they need our help to rebuild their lives and return 
to their vital missions.
  I hope my colleagues will support the Cerro Grande Fire Assistance 
Act.
  Citizens can choose not to take this claims approach provided for in 
this legislation, and they can go to the Federal courts under the 
Federal Tort Claims Act. If they do, they will get no compensation 
under this bill. That is their option.
  If they choose the option provided under this bill and they go 
through it to get money for their damages--let's just take an item, 
such as a house which Senator Bingaman and I discussed. If there is a 
dispute as to the value of that house, and they are supposed to get the 
value for the replacement cost--if there is a dispute, this bill 
provides an opportunity to use arbitration.
  We have limited attorney's fees in this bill to 10 percent. We don't 
think this is going to be a heavily litigated process. I repeat, if 
citizens want to make their claim under the Federal Tort Claims Act, 
this legislation does not preclude that, other than they have no right 
to claim anything under this bill.
  We owe tremendous gratitude to the workers of Los Alamos. We won the 
cold war because of their efforts and their predecessors in the various 
activities and scientific niches at this laboratory which has been run 
admirably by the University of California.
  Today, we enjoy some of our basic freedoms because in that cold war 
with the Soviet Union we had great people in this community and a 
couple of other communities, always staying ahead so people could be 
assured nuclear weapons would never be used against our people.
  That laboratory is having some trouble besides the fire. When it all 
finishes, we will still stand in awe at the fantastic brain trust that 
is assembled in the mountains of northern New Mexico. We have a sister 
institution in California, obviously, and an engineering institution in 
Albuquerque called Sandia National Laboratories. They are three labs 
that are tied together by scientific prowess and a commitment to serve 
America in her needs.
  The PRESIDING OFFICER. The junior Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I thank my colleague, Senator Domenici. 
I also want to state how much I have enjoyed working with him on this 
terrible subject. I think the ability of our offices to work together 
has been admirable. We have come up with a plan that moves the process 
forward and closer to some real relief for the people who were damaged 
by this incident.
  Mr. President, this was a disaster. This was a catastrophe. Let me 
show three photos that make the case. This is a photo from space, from 
a very high altitude, that shows the fire while it was burning, with 
the smoke plume coming through northeastern New Mexico into Colorado, 
into Oklahoma, and into west Texas. The photo shows the magnitude of 
what was involved. This was clearly the largest forest fire we have 
ever had in our State of New Mexico since they have been keeping 
records. It is very unfortunate that it was started by a controlled 
burn to which the Park Service agreed. That clearly makes this the 
responsibility of the Federal Government. As a country, we need to step 
up and compensate people for their losses.
  Let me show two other photos that make the case as to what was done. 
This is a photo of one of the houses in Los Alamos with a car out 
front. These people in Los Alamos were advised they needed to leave 
their homes, get in cars or on buses, and go down to Santa Fe to escape 
the danger. They did. This is what they came back to a couple of weeks 
later. Clearly, this is not the kind of a circumstance of which anyone 
can be proud.
  Mr. DOMENICI. Will the Senator yield?
  Mr. BINGAMAN. I yield.
  Mr. DOMENICI. The Senator views this scene while driving down the 
streets?
  Mr. BINGAMAN. I toured the community and the neighborhoods with James 
Lee Witt, the head of FEMA, and with our Governor, Governor Johnson. We 
saw the devastation.
  Mr. DOMENICI. This is a chimney?
  Mr. BINGAMAN. That is a chimney.
  The people did not have time to even arrange to drive their cars out 
of town. Of course, all their personal belongings were in the houses. 
The damage was total. The loss was total for the families who were 
burned out.
  Another photo makes the case, a photo of the rubble that was left at 
one of the sites. Here is a bicycle. I might add, the water lines in 
these houses were still running. As we drove up and down the street, we 
saw water spurting out of the water lines, but there would be no house. 
Clearly, the devastation was enormous.
  The people of Los Alamos and Senator Domenici made this point, and it 
has been made many times: The people of Los Alamos were heroic in their 
response to this tragedy. They pulled together as a community. They 
helped each other. They worked together to get their community back up 
and running. The people of the entire State came together and rallied 
to help the people who were injured. This was a period, and we are 
still in it to some extent, a period where we have lots of fires going 
on in New Mexico. It was not just the people who were injured in the 
Cerro Grande fire who were requiring assistance. We had other fires in 
our State, including the Scott Able fire in southern New Mexico which 
was very devastating, the fire at Ruidoso, the Viveash fire near Pecos.
  Our job now, and what Senator Domenici and I are trying to do in this 
legislation, is to put in place a mechanism so people can get as full a 
relief as possible. We recognize you are not ever in a position to 
compensate someone for all of this loss, but we want to compensate 
people as fully as the Government can. We also, of course, want to do 
so as quickly as possible.
  The reason this legislation is important, I believe--and I think this 
was something which the administration officials, and Jack Lew with the 
Office of Management and Budget agreed with entirely--is that the time 
it takes to go through the Tort Claims Act is extensive. History has 
shown that in many cases it is not satisfactory, that process has not 
been satisfactory. It was our conclusion, and the conclusion supported 
by the administration, that we should do a separate bill which would 
set up a different procedure that, hopefully, would give better 
compensation to people, and do it much more quickly than is otherwise 
possible.
  Senator Domenici pointed out we have gone to great lengths to not 
interfere with the right of people to pursue their remedies under 
current law, if they choose to do that. We have not changed the rules 
for that. We have not in any way impeded that. But people have to make 
a judgment after they consult with everyone involved--their attorneys 
if they have attorneys, or anyone else with whom they want to consult--
make a judgment as to whether to use the remedy, the process we are 
setting up in this legislation, once this becomes law, or to use the 
process that is available to them under current law under the Tort 
Claims Act.
  My own hope is that we have come up with a better alternative. That 
is my belief. That has certainly been our purpose. We hope people will 
see it that way and that this legislation will result in more full 
compensation, much more rapidly than would otherwise be possible, and 
that people will be able to get on with their lives because of that.
  The legislation has many aspects to it, which I discussed in detail. 
Senator Domenici went into some of that. Let me just say, the main 
thrust of it is to compensate people for injuries they receive, for 
loss of property, compensate businesses for losses they incurred, 
compensate businesses and individuals, both, for financial losses that 
are directly traceable and attributable to this fire.
  Clearly, we want this to be a fair process for those involved. At the 
same time, we are anxious that it be done in a responsible way, so once 
it is over with, we can have an accounting for

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what compensation was provided and the justification for it. I think 
the American people will want that and should be entitled to that. I 
believe this will substantially improve the chances of folks getting 
fully compensated, as fully compensated as possible, as early as 
possible.
  For that reason, I am pleased to join Senator Domenici in 
cosponsoring this legislation. I do think we have several steps, 
several hoops to jump through between now and when this becomes law. 
There will be opportunities for us to fine-tune this as we go forward. 
I hope we can do that, but I hope we can go forward very quickly. He 
indicated our desire to have it included in some appropriations 
legislation--the military construction appropriations bill--which is 
pending now. I hope very much that can happen, and I hope that bill can 
get to the President very quickly with this included and can become 
law.
  Mr. President, on May 4, 2000, a decision by the National Park 
Service to conduct a prescribed burn in the Bandelier National Park 
changed the lives of Los Alamos residents forever. What started as a 
prescribed burn of approximately 1,000 acres, turned into a fire that 
roared for 18 days and in the end charred over 47,000 acres. Soon after 
the fire raged out of control, the National Park Service assumed 
responsibility for the damage caused by the fire.
  While we need to take another look at the Park Service's policy 
concerning prescribed burns, we first need to take care of those that 
were injured by the Park Service's actions. There will be time for 
hearings and investigations. But first, there are people that must be 
clothed, homes that must be rebuilt, and businesses that must pay their 
bills. We need to make sure our children are settled again before the 
2001 school year begins in 2 months. We need to clean up the debris and 
hazardous waste so families can think about rebuilding.
  The Cerro Grande Fire Assistance Act that I am introducing with 
Senator Domenici today is what we believe represents the Government's 
responsibility to the citizens of Los Alamos and the surrounding 
pueblos.
  The Cerro Grande fire didn't just burn 47,000 acres of national 
forest. This fire was so intense that it traveled several miles from 
the point of origin to the town of Los Alamos, New Mexico. When the 
fire roared up the canyons in Los Alamos, it completely destroyed 385 
dwellings and seriously damaged another 17 dwellings. Over 60 homes 
were burned on 46th, 48th and Yucca Streets alone. Keep in mind that 
Los Alamos is not a large community and these numbers reflect a large 
majority of the residents in those areas. This chart shows what used to 
be single family homes on Arizona Avenue. It was one of the 50 homes 
destroyed along Arizona Avenue.
  This second picture shows the damage done along Alabama Avenue. The 
fourplexes across the street were spared but many of the fourplexes 
along Alabama are no longer standing. Most of these fourplexes were 
built between 1949 and 1954 by the federal government for the first 
workers of the national laboratory. In the late 1960's the federal 
government sold these homes to the residents of Los Alamos. On May 4th, 
many of these homes were occupied by the original residents--
individuals who are now retired from the lab and enjoying their golden 
years. Ten percent of the households destroyed belonged to senior 
citizens. One such couple showed up to a town meeting to show me all 
they had left of their former home--the wife had the burned door handle 
and the husband had the key in his pocket.
  Other fourplexes that were destroyed were occupied by young families 
and the most recent generation of lab employees. 35% of the housing 
units destroyed were being rented and 92 of those tenants were without 
any form of insurance. Many of these people are now without a home for 
their young families. One of the couples I spoke with after the fire 
was a young couple expecting a child who lost their home and their 
adjoining rental unit. And I was recently informed that over 200 school 
children were burned out of their homes.
  Driving through these neighborhoods that are now filled with 
blackened trees, melted swing sets and burned bicycles is a difficult 
thing to witness. This fire grew out of control so quickly, mostly 
because of the 60 mph winds that swirled through the controlled burn 
area, that most families had less than an hour to gather their 
belongings and evacuate the mesa. Many others didn't have even that 
much time. As you can see by the numerous burned cars, many families 
were unable to get both of their cars down the hill before the fire 
hit. In the end, 5% of the housing units in Los Alamos was destroyed by 
this fire.

  Despite the personal tragedy many of them suffered, the residents of 
Los Alamos came together and helped one another and supported the 
efforts of the hundreds of firefighters who fought long and hard to 
control this monstrous blaze. Several Los Alamos restaurant owners 
returned to Los Alamos during the height of the fire and donated their 
inventory and services to cook up meals at the local Elks Lodge for the 
firefighters, police and National Guardsmen who were sent to this 
remote community. In addition, the outpouring of support from the 
nearby communities in setting up shelters and offering food and 
clothing was something I was proud to witness firsthand. This support 
also included the shelters and individuals who volunteered to take in 
the hundreds of animals that belonged to the over 20,000 residents 
evacuated from Los Alamos and White Rock.
  The citizens of Los Alamos were heroic throughout this fire. 
Residents, like engineer Tony Tomei, were single-handedly trying to 
help save their neighborhoods from spreading wildlife. Tomei used his 
garden hose to douse small spot fires and used a rake and shovel to 
extinguish burning debris. His all night efforts saved his own house 
and the house of one neighbor, much to the neighbor's surprise.
  After returning from Los Alamos and viewing the extent of damage, I 
began work with Senator Domenici on legislation that would compensate 
the people of Los Alamos, the surrounding pueblos, and the national 
laboratory for the damages sustained. We have been working for over 3 
weeks now with the Office of Budget and Management, the White House, 
and the citizens of New Mexico to come up with legislation that will 
provide those who suffered personal and/or financial injury the most 
expedient and thorough compensation possible. We have received input 
from a number of individuals who lost their homes, from business owners 
who were shut down for up to a week, from the Los Alamos County Council 
and the governors of the San Ildefonso and Santa Clara Pueblos. While 
no one can truly be made whole after such a devastating experience, the 
role of the federal government in this situation is to ensure that 
people are adequately compensated for the losses resulting from the 
fire. Senator Domenici and I worked to come up with legislation that 
would compensate New Mexicans as fully as possible, while still being 
something acceptable to the entire Congress.
  Based on the numerous meetings we held with the people mentioned 
above, we have come up with categories of damages that are compensable, 
including: property losses, business losses and financial losses. The 
goal is to compensate individuals for losses that were not otherwise 
covered by insurance or any other third party contribution.
  For example, compensable property losses will include such things as 
uninsured property losses. This should address the problem many 
individuals are facing after realizing that they were under insured for 
their homes or their personal property. The goal is this legislation is 
to provide individuals with the funds needed to repair or replace their 
real and personal property using ``replacement value'' as a determining 
factor. This means that individuals should receive the dollar amount 
needed to rebuild their homes using current construction methods 
and materials, in line with current zoning requirements, and without a 
deduction for depreciation. It also means that individuals should be 
provided with the funds necessary to allow them to replace their 
damaged personal property with property that provides them equal 
utility. Moreover, we realize that homeowners will need funds to cover 
the cost of stabilizing and restoring their land to a condition 
suitable for building after the debris is removed.

[[Page S5259]]

  The legislation will also compensate public entities for the damage 
to the physical infrastructure in the community. The county and other 
governmental entities will be able to seek compensation for the cost of 
rebuilding community infrastructure damaged by the fire, such as power 
lines, roads and public parks.
  Compensable business losses will include such things as damage to 
tangible business assets, lost profits, costs incurred as a result of 
suspending business for one week, wages paid to employees for days 
missed during the fire, and other business losses deemed appropriate by 
the Claims Office. This provision is intended to help business owners 
who were forced to evacuate Los Alamos for up to 5 days. For people 
like the local nursery owner, closing shop during Mothers' Day weekend 
and the short planting season in northern NM was devastating. While the 
residents of Los Alamos disappeared from the community, the fixed 
overhead costs of the small business owners did not disappear.
  Compensable financial losses will include economic losses for 
expenses such as insurance deductibles, temporary living expenses, 
relocation expenses, debris removal costs, and emergency staffing 
expenses for our governmental entities. The intent is to assist victims 
in rebuilding and recovering incidental expenses that they would 
otherwise not have incurred, had it not been for the Cerro Grande Fire. 
This includes costs incurred by the claimant in proving his losses, 
including the cost of appraisals where necessary.
  In addition, the pueblos will be eligible to seek compensation for 
the damage to the forest lands on the pueblo and the impact of the fire 
on their subsistence hunting, fishing, firewood, timbering, grazing and 
agricultural activities. Individual tribal members and wholly-owned 
tribal entities will be eligible to seek reimbursement through this 
claims process for quantifiable losses. This means that the BIA will 
not serve as a conduit for any settlement to an individual tribal 
member or a tribe.
  This legislation also intends to provide resources for the 
remediation that will be necessary to prevent future disasters because 
of flooding and mudslides. While we have experienced an unusually dry 
summer in the Southwest, forecasters predict an earlier than usual 
monsoon season and efforts must be made to shore up the burned 
hillsides and 70 foot canyon walls. The remediation effort will have to 
be undertaken by several federal agencies, including the Department of 
interior, the Agriculture Department and other entities with experience 
in this regard.
  In order to expedite an individual's recovery, we have designed an 
administrative claims process that will allow injured parties to seek 
compensation for the expenses that were incurred, and were not 
otherwise covered by a third party, as a result of the Cerro Grande 
fire. This legislation authorizes that claims process and establishes 
an Office of Cerro Grande Fire Claims which will be under the authority 
of the Director of FEMA. FEMA is directed to compensate the victims of 
the Cerro Grande fire for injuries resulting from the fire and to 
settle those claims in an expeditious manner. FEMA will be given 
authority to hire an independent claims manager or other experts in 
claims processing to oversee this large project. We feel that FEMA is 
the best federal agency to handle this responsibility as they are 
capable of the task and are familiar with the damages that are common 
in a disaster. I trust that the FEMA Director will assemble a team that 
the community of Los Alamos can have confidence in and that will strive 
to settle claims to the benefit of those injured.

  The Director of FEMA has 45 days to design this claims process and 
promulgate regulations for the claims office to follow. The regulations 
should not be overly burdensome for the claimants and should provide an 
understandable and straight forward path to settlement. In the event 
that issues arise concerning a settlement amount, the claimant will be 
able to enter into binding arbitration to settle any disputes with the 
claims office. If a claimant would rather have the Director's decision 
reviewed by a judge, the claimant will be able to seek judicial review 
of the Director's decision in federal court. Claimants who believe they 
need legal assistance as they proceed through this process should know 
that attorneys' fees are provided for in this legislation, with a cap 
of 10%. And while we believe this administrative claims process is the 
most efficient and reliable route for those seeking compensation, we 
are leaving the option of a federal tort action open to this 
legislation.
  Mr. President, there is nothing Senator Domenici or I can do to 
replace the personal items and sentimental possessions that were 
consumed by the Cerro Grande Fire. This federal compensation will do 
nothing to replace a coin collection collected over a lifetime or an 
heirloom inherited from a great-grandmother. However, the federal 
government has the responsibility to try and restore the lives of the 
people impacted by this horrible tragedy. The federal government 
started this mess and it is time the federal government started 
cleaning up this mess and fixing what was damaged.
  Congress can start the recovery process by passing this legislation. 
I ask that my colleagues act quickly on this legislation as the season 
for rebuilding this community is a short season for this city that sits 
high above the valley. I thank my colleagues for their support and for 
their willingness to do the right thing in this very unique situation.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I once again thank Senator Bingaman.
  Part of the time these discussions were taking place in New Mexico, I 
was not available to be there. As most people in New Mexico know, I 
have been there twice, but I missed one occasion when Senator Bingaman 
got to talk with the people. I thank him for that because he brought 
back a number of ideas. One of my staffers was present with him. Those 
ideas are incorporated in this legislation.
  In particular, let me repeat that the bill covers ``loss of 
property,'' and it says what that means; ``business losses,'' and it 
says what that means; ``financial losses,'' and it says what that 
means. Then a ``summary of the claims process'' and a summary of the 
remedies and a summary of appeal rights.
  The lead agency is going to be the Office of Cerro Grande Fire Claims 
within FEMA. James Lee Witt or his successor will oversee that office 
but has the discretionary authority to designate an independent claims 
manager to run the office, if he so desires.
  We are not creating anything new, it will be FEMA. But if he wants an 
independent claims manager, he has the latitude and authority to do 
that. There will be a separate account for the victims of the Cerro 
Grande fire that will be separate from the disaster assistance fund. 
Also, all of the money appropriated will be designated as an emergency.
  I want to thank the staff who worked on this legislation. In my 
office: Steve Bell, Denise Greenlaw Ramonas, Brian Benczkowski, James 
Fuller and Veronica Rodriguez. From Senator Bingaman's office, Trudy 
Vincent, Christine Landavazo, Sam Fowler and Bob Simon. I also want to 
thank Ann Bushmiller from the White House Counsel's office and 
Elizabeth Gore from the Office of Management and Budget. I ask 
unanimous consent that a letter from Jack Lew expressing the 
Administration's support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2736

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Cerro Grande Fire Assistance 
     Act''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) on May 4, 2000, the National Park Service initiated a 
     prescribed burn on Federal land at Bandelier National 
     Monument in New Mexico during the peak of the fire season in 
     the Southwest;
       (2) on May 5, 2000, the prescribed burn, which became known 
     as the ``Cerro Grande Prescribed Fire'', exceeded the 
     containment capabilities of the National Park Service, was 
     reclassified as a wildland burn, and spread to other Federal 
     and non-Federal land, quickly becoming characterized as a 
     wildfire;
       (3) by May 7, 2000, the fire had grown in size and caused 
     evacuations in and around

[[Page S5260]]

     Los Alamos, New Mexico, including the Los Alamos National 
     Laboratory, 1 of the leading national research laboratories 
     in the United States and the birthplace of the atomic bomb;
       (4) on May 13, 2000, the President issued a major disaster 
     declaration for the counties of Bernalillo, Cibola, Los 
     Alamos, McKinley, Mora, Rio Arriba, Sandoval, San Juan, San 
     Miguel, Santa Fe, Taos, and Torrance, New Mexico;
       (5) the fire resulted in the loss of Federal, State, local, 
     tribal, and private property;
       (6) the Secretary of the Interior and the National Park 
     Service have assumed responsibility for the fire and 
     subsequent losses of property; and
       (7) the United States should compensate the victims of the 
     Cerro Grande fire.
       (b) Purposes.--The purposes of this Act are--
       (1) to compensate victims of the fire at Cerro Grande, New 
     Mexico, for injuries resulting from the fire; and
       (2) to provide for the expeditious consideration and 
     settlement of claims for those injuries.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Cerro grande fire.--The term ``Cerro Grande fire'' 
     means the fire resulting from the initiation by the National 
     Park Service of a prescribed burn at Bandelier National 
     Monument, New Mexico, on May 4, 2000.
       (2) Director.--The term ``Director'' means--
       (A) the Director of the Federal Emergency Management 
     Agency; or
       (B) if a Manager is appointed under section 4(a)(3), the 
     Manager.
       (3) Injured person.--The term ``injured person'' means--
       (A) an individual, regardless of the citizenship or alien 
     status of the individual; or
       (B) an Indian tribe, corporation, tribal corporation, 
     partnership, company, association, county, township, city, 
     State, school district, or other non-Federal entity 
     (including a legal representative);

     that suffered injury resulting from the Cerro Grande fire.
       (4) Injury.--The term ``injury'' has the same meaning as 
     the term ``injury or loss of property, or personal injury or 
     death'' as used in section 1346(b)(1) of title 28, United 
     States Code.
       (5) Manager.--The term ``Manager'' means an Independent 
     Claims Manager appointed under section 4(a)(3).
       (6) Office.--The term ``Office'' means the Office of Cerro 
     Grande Fire Claims established by section 4(a)(2).

     SEC. 4. COMPENSATION FOR VICTIMS OF CERRO GRANDE FIRE.

       (a) In General.--
       (1) Compensation.--Each injured person shall be entitled to 
     receive from the United States compensation for injury 
     suffered by the injured person as a result of the Cerro 
     Grande fire.
       (2) Office of cerro grande fire claims.--
       (A) In general.--There is established within the Federal 
     Emergency Management Agency an Office of Cerro Grande Fire 
     Claims.
       (B) Purpose.--The Office shall receive, process, and pay 
     claims in accordance with this title.
       (C) Funding.--The Office--
       (i) shall be funded from funds made available to the 
     Director under this title; and
       (ii) may reimburse other Federal agencies for claims 
     processing support and assistance.
       (3) Option to appoint independent claims manager.--The 
     Director may appoint an Independent Claims Manager to--
       (A) head the Office; and
       (B) assume the duties of the Director under this Act.
       (b) Submission of Claims.--Not later than 2 years after the 
     date on which regulations are first promulgated under 
     subsection (f), an injured person may submit to the Director 
     a written claim for 1 or more injuries suffered by the 
     injured person in accordance with such requirements as the 
     Director determines to be appropriate.
       (c) Investigation of Claims.--
       (1) In general.--The Director shall, on behalf of the 
     United States, investigate, consider, ascertain, adjust, 
     determine, grant, deny, or settle any claim for money damages 
     asserted under subsection (b).
       (2) Applicability of state law.--Except as otherwise 
     provided in this Act, the laws of the State of New Mexico 
     shall apply to the calculation of damages under subsection 
     (d)(4).
       (3) Extent of damages.--Any payment under this Act--
       (A) shall be limited to actual compensatory damages 
     measured by injuries suffered; and
       (B) shall not include--
       (i) interest before settlement or payment of a claim; or
       (ii) punitive damages.
       (d) Payment of Claims.--
       (1) Determination and payment of amount.--
       (A) In general.--
       (i) Payment.--Not later than 180 days after the date on 
     which a claim is submitted under this Act, the Director shall 
     determine and fix the amount, if any, to be paid for the 
     claim.
       (ii) Priority.--The Director, to the maximum extent 
     practicable, shall pay subrogation claims submitted under 
     this Act only after paying claims submitted by injured 
     parties that are not insurance companies seeking payment as 
     subrogees.
       (B) Parameters of determination.--In determining and 
     settling a claim under this Act, the Director shall determine 
     only--
       (i) whether the claimant is an injured person;
       (ii) whether the injury that is the subject of the claim 
     resulted from the fire;
       (iii) the amount, if any, to be allowed and paid under this 
     Act; and
       (iv) the person or persons entitled to receive the amount.
       (C) Insurance and other benefits.--
       (i) In general.--In determining the amount of, and paying, 
     a claim under this Act, to prevent recovery by a claimant in 
     excess of actual compensatory damages, the Director shall 
     reduce the amount to be paid for the claim by an amount that 
     is equal to the total of insurance benefits (excluding life 
     insurance benefits) or other payments or settlements of any 
     nature that were paid, or will be paid, with respect to the 
     claim.
       (ii) Government loans.--This subparagraph shall not apply 
     to the receipt by a claimant of any government loan that is 
     required to be repaid by the claimant.
       (2) Partial payment.--
       (A) In general.--At the request of a claimant, the Director 
     may make 1 or more advance or partial payments before the 
     final settlement of a claim, including final settlement on 
     any portion or aspect of a claim that is determined to be 
     severable.
       (B) Judicial decision.--If a claimant receives a partial 
     payment on a claim under this Act, but further payment on the 
     claim is subsequently denied by the Director, the claimant 
     may--
       (i) seek judicial review under subsection (i); and
       (ii) keep any partial payment that the claimant received, 
     unless the Director determines that the claimant--

       (I) was not eligible to receive the compensation; or
       (II) fraudulently procured the compensation.

       (3) Rights of insurer or other third party.--If an insurer 
     or other third party pays any amount to a claimant to 
     compensate for an injury described in subsection (a), the 
     insurer or other third party shall be subrogated to any right 
     that the claimant has to receive any payment under this Act 
     or any other law.
       (4) Allowable damages.--
       (A) Loss of property.--A claim that is paid for loss of 
     property under this Act may include otherwise uncompensated 
     damages resulting from the Cerro Grande fire for--
       (i) an uninsured or underinsured property loss;
       (ii) a decrease in the value of real property;
       (iii) damage to physical infrastructure;
       (iv) a cost resulting from lost tribal subsistence from 
     hunting, fishing, firewood gathering, timbering, grazing, or 
     agricultural activities conducted on land damaged by the 
     Cerro Grande fire;
       (v) 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; and
       (vi) any other loss that the Director determines to be 
     appropriate for inclusion as loss of property.
       (B) Business loss.--A claim that is paid for injury under 
     this Act may include damages resulting from the Cerro Grande 
     fire for the following types of otherwise uncompensated 
     business loss:
       (i) Damage to tangible assets or inventory.
       (ii) Business interruption losses.
       (iii) Overhead costs.
       (iv) Employee wages for work not performed.
       (v) Any other loss that the Director determines to be 
     appropriate for inclusion as business loss.
       (C) Financial loss.--A claim that is paid for injury under 
     this Act may include damages resulting from the Cerro Grande 
     fire for the following types of otherwise uncompensated 
     financial loss:
       (i) Increased mortgage interest costs.
       (ii) An insurance deductible.
       (iii) A temporary living or relocation expense.
       (iv) Lost wages or personal income.
       (v) Emergency staffing expenses.
       (vi) Debris removal and other cleanup costs.
       (vii) Costs of reasonable efforts, as determined by the 
     Director, to reduce the risk of wildfire, flood, or other 
     natural disaster in the counties specified in section 
     2(a)(4), to risk levels prevailing in those counties before 
     the Cerro Grande fire, that are incurred not later than the 
     date that is 3 years after the date on which the regulations 
     under subsection (f) are first promulgated.
       (viii) A premium for flood insurance that is required to be 
     paid on or before May 12, 2002, if, as a result of the Cerro 
     Grande fire, a person that was not required to purchase flood 
     insurance before the Cerro Grande fire is required to 
     purchase flood insurance.
       (ix) Any other loss that the Director determines to be 
     appropriate for inclusion as financial loss.
       (e) Acceptance of Award.--The acceptance by a claimant of 
     any payment under this Act, except an advance or partial 
     payment made under subsection (d)(2), shall--
       (1) be final and conclusive on the claimant, with respect 
     to all claims arising out of or relating to the same subject 
     matter; and
       (2) constitute a complete release of all claims against the 
     United States (including any agency or employee of the United

[[Page S5261]]

     States) 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 
     same subject matter.
       (f) Regulations and Public Information.--
       (1) Regulations.--Notwithstanding any other provision of 
     law, not later than 45 days after the date of enactment of 
     this Act, the Director shall promulgate and publish in the 
     Federal Register interim final regulations for the processing 
     and payment of claims under this Act.
       (2) Public information.--
       (A) In general.--At the time at which the Director 
     promulgates regulations under paragraph (1), the Director 
     shall publish, in newspapers of general circulation in the 
     State of New Mexico, a clear, concise, and easily 
     understandable explanation, in English and Spanish, of--
       (i) the rights conferred under this Act; and
       (ii) the procedural and other requirements of the 
     regulations promulgated under paragraph (1).
       (B) Dissemination through other media.--The Director shall 
     disseminate the explanation published under subparagraph (A) 
     through brochures, pamphlets, radio, television, and other 
     media that the Director determines are likely to reach 
     prospective claimants.
       (g) Consultation.--In administering this Act, the Director 
     shall consult with the Secretary of the Interior, the 
     Secretary of Energy, the Secretary of Agriculture, the 
     Administrator of the Small Business Administration, other 
     Federal agencies, and State, local, and tribal authorities, 
     as determined to be necessary by the Director to--
       (1) ensure the efficient administration of the claims 
     process; and
       (2) provide for local concerns.
       (h) Election of Remedy.--
       (1) In general.--An injured person may elect to seek 
     compensation from the United States for 1 or more injuries 
     resulting from the Cerro Grande fire by--
       (A) submitting a claim under this Act;
       (B) filing a claim or bringing a civil action under chapter 
     171 of title 28, United States Code; or
       (C) bringing an authorized civil action under any other 
     provision of law.
       (2) Effect of election.--An election by an injured person 
     to seek compensation in any manner described in paragraph (1) 
     shall be final and conclusive on the claimant with respect to 
     all injuries resulting from the Cerro Grande fire that are 
     suffered by the claimant.
       (3) Arbitration.--
       (A) In general.--Not later than 45 days after the date of 
     enactment of this Act, the Director shall establish by 
     regulation procedures under which a dispute regarding a claim 
     submitted under this Act may be settled by arbitration.
       (B) Arbitration as remedy.--On establishment of arbitration 
     procedures under subparagraph (A), an injured person that 
     submits a disputed claim under this Act may elect to settle 
     the claim through arbitration.
       (C) Binding effect.--An election by an injured person to 
     settle a claim through arbitration under this paragraph 
     shall--
       (i) be binding; and
       (ii) preclude any exercise by the injured person of the 
     right to judicial review of a claim described in subsection 
     (i).
       (4) No effect on entitlements.--Nothing in this Act affects 
     any right of a claimant to file a claim for benefits under 
     any Federal entitlement program.
       (i) Judicial Review.--
       (1) In general.--Any claimant aggrieved by a final decision 
     of the Director under this Act may, not later than 60 days 
     after the date on which the decision is issued, bring a civil 
     action in the United States District Court for the District 
     of New Mexico, to modify or set aside the decision, in whole 
     or in part.
       (2) Record.--The court shall hear a civil action under 
     paragraph (1) on the record made before the Director.
       (3) Standard.--The decision of the Director incorporating 
     the findings of the Director shall be upheld if the decision 
     is supported by substantial evidence on the record considered 
     as a whole.
       (j) Attorney's and Agent's Fees.--
       (1) In general.--No attorney or agent, acting alone or in 
     combination with any other attorney or agent, shall charge, 
     demand, receive, or collect, for services rendered in 
     connection with a claim submitted under this Act, fees in 
     excess of 10 percent of the amount of any payment on the 
     claim.
       (2) Violation.--An attorney or agent who violates paragraph 
     (1) shall be fined not more than $10,000.
       (k) Waiver of Requirement for Matching Funds.--
       (1) In general.--Notwithstanding any other provision of 
     law, a State or local project that is determined by the 
     Director to be carried out in response to the Cerro Grande 
     fire under any Federal program that applies to an area 
     affected by the Cerro Grande fire shall not be subject to any 
     requirement for State or local matching funds to pay the cost 
     of the project under the Federal program.
       (2) Federal share.--The Federal share of the costs of a 
     project described in paragraph (1) shall be 100 percent.
       (l) Applicability of Debt Collection Requirements.--Section 
     3716 of title 31, United States Code, shall not apply to any 
     payment under this Act.
       (m) Indian Compensation.--Notwithstanding any other 
     provision of law, in the case of an Indian tribe, a tribal 
     entity, or a member of an Indian tribe that submits a claim 
     under this Act--
       (1) the Bureau of Indian Affairs shall have no authority 
     over, or any trust obligation regarding, any aspect of the 
     submission of, or any payment received for, the claim;
       (2) the Indian tribe, tribal entity, or member of an Indian 
     tribe shall be entitled to proceed under this Act in the same 
     manner and to the same extent as any other injured person; 
     and
       (3) except with respect to land damaged by the Cerro Grande 
     fire that is the subject of the claim, the Bureau of Indian 
     Affairs shall have no responsibility to restore land damaged 
     by the Cerro Grande fire.
       (n) Report.--Not later than 1 year after the date of 
     promulgation of regulations under subsection (f)(1), and 
     annually thereafter, the Director shall submit to Congress a 
     report that describes the claims submitted under this Act 
     during the year preceding the date of submission of the 
     report, including, for each claim--
       (1) the amount claimed;
       (2) a brief description of the nature of the claim; and
       (3) the status or disposition of the claim, including the 
     amount of any payment under this Act.
       (o) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as are necessary to carry out 
     this Act.
                                  ____


          Summary of Cerro Grande Fire Assistance Act of 2000

       Administrator: FEMA as lead agency, with authority to 
     designate an independent claims manager.
       Entities eligible for compensation: all individuals, Indian 
     tribes, corporations, tribal corporations, partnerships, 
     companies, associations, counties, townships, cities, State, 
     school districts and any other non-federal entity that 
     suffered injury resulting from the Cero Grande fire.
       Types of compensable injuries: tracks the Federal Tort 
     Claims Act: Injury, loss of property and personal injuries 
     are compensable.
       Damages for ``loss of property'' will include: uninsured or 
     under-insured property loss, decrease in the value of real 
     property, damage to physical infrastructure, loss of 
     subsistence hunting, fishing, firewood, timbering, grazing 
     and agricultural activities, and any other loss deemed 
     appropriate as a ``loss of property.''
       Damages for ``injury'' will include ``business losses'', 
     such as: damage to tangible assets or inventory, business 
     interruption losses, overhead costs, employee wages paid for 
     work not performed as a result of the fire, and any other 
     injury deemed appropriate for compensation as a ``business 
     loss.''
       Damages for ``injury will include ``financial losses'' such 
     as: increased mortgage interest costs, insurance deductibles, 
     the cost of flood insurance, temporary living or relocation 
     expenses, emergency staffing expenses, debris removal and 
     other clean-up costs, hazard mitigation and any other injury 
     deemed appropriate for compensation as a ``financial loss.''
       Process: FEMA Director required to promulgate interim final 
     regulations within 45 days of enactment of the Act. Claims 
     must be filed within two years of promulgation of the 
     regulations, and adjudicated by FEMA within 180 days of 
     filing. Once regulations are promulgated, Director must 
     publish easy-to-understand explanation of the rights 
     conferred by the law and a description of the claims process 
     in English and Spanish in New Mexico newspapers and other 
     media outlets.
       Election of remedies: Party must at the outset elect either 
     to proceed under Federal Tort Claims Act (FTCA) or 
     legislative claims process. The election is binding on the 
     claimant for all damages resulting from the Cerro Grande 
     fire. Must release U.S. Government from lawsuit under FTCA as 
     a condition of receiving a claims process award.
       Appeal: If victim is dissatisfied with claims decision, may 
     appeal to Federal District Court for the District of New 
     Mexico or pursue binding arbitration. If elect binding 
     arbitration, decision of the arbitor is final. If elect 
     Federal Court, standard of review is that the decision of the 
     Director stands if supported by substantial evidence on the 
     record.
       Insurance: Insurance companies allowed to proceed in same 
     manner under the Act as all other claimants, but to the 
     maximum extent practicable, insurance company subrogation 
     claims must be paid after those of other injured persons. 
     Awards received through claims process will be reduced by 
     amounts of insurance payments already received.
       Consultation: Director required to consult with Secretary 
     of Energy, Secretary of Interior, Secretary of Agriculture, 
     SBA, FEMA, other federal agencies, State, local and tribal 
     officials to ensure the efficient administration of the 
     process and provide an outlet for local concerns.
       Attorney's fees: Limited to 10 percent of claims award. 
     Attorneys who violate the rule fined $10,000.
       Matching requirements: Waives State and local matching 
     requirement for all Federal programs utilized in response to 
     the fire.
       Flood insurance: Government will reimburse homeowners for 
     the cost of three years of Federal flood insurance premiums 
     if their property was not in the flood plain prior to the 
     fire and subsequently was included in the flood plain as a 
     result of the fire.

[[Page S5262]]

     
                                  ____
                              Office of Management and Budget,

                                    Washington, DC, June 15, 2000.
     Hon. Pete V. Domenici,
     U.S. Senate,
     Washington, DC.
       Dear Senator Domenici: As you know from our work together 
     in recent weeks, the Administration shares with you the 
     commitment to ensuring that all those affected by the fire 
     that began at Bandelier National Monument are fully 
     compensated for their losses. We are pleased that our work 
     together in a constructive dialogue has resulted in 
     legislation that will achieve this goal.
       We are fully supportive of the Cerro Grande Fire Assistance 
     Act, which will help fully, fairly, and quickly compensate 
     those who have suffered losses as a result of this fire. We 
     urge Congress to move promptly to pass this essential 
     legislation.
           Sincerely,
                                                     Jacob J. Lew,
                                                         Director.
                                 ______