Water Infrastructure for Improvements to the Nation (WIIN) Act

March 16, 2017: The U.S. Environmental Protection Agency (EPA) has issued guidelines to its regional offices for determining which Gold King Mine response costs are eligible for reimbursement under the recently passed Water Infrastructure Improvements for the Nation (WIIN) Act.

Section 5004(c) of the WIIN Act directs EPA to pay “any claim made by a State, Indian tribe, or local government for eligible response costs relating to the Gold King Mine release” under its Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authority.

Response costs eligible for payment under the WIIN Act, which was enacted on Dec. 16, 2016, include removal and remedial response costs incurred through Sept. 9, 2016, as well as response costs incurred after Sept. 9, 2016, that EPA preapproved. These response costs must also be consistent with the National Oil and Hazardous Substances Pollution Contingency Plan to be eligible for reimbursement.

The WIIN Act does not alter other required reimbursement criteria. Reimbursement applications must still include adequate documentation. Costs incurred must relate to responses costs associated with the Aug. 5, 2015, Gold King Mine release. And payment must satisfy federal cost principles.

The WIIN Act provides states, local and tribal governments a deadline of June 14, 2017, for submitting reimbursement claims to EPA for consideration.

Frequent Questions About the WIIN Act

Does this affect EPA and DOJ’s decision about claims under the Federal Tort Claims Act?

Reimbursement of eligible state, tribal and local government response costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) — including claims addressed by the WIIN Act — is separate from the evaluation of claims for damages brought under the Federal Tort Claims Act (FTCA).

On Jan. 12, 2017, the independent claims officer within EPA – guided by the U.S. Department of Justice – made a decision on the administrative claims brought under the FTCA in connection with the Aug. 5, 2015, Gold King Mine release. After careful analysis, the claims officer concluded that the Agency is not legally able to pay compensation for the claims. The WIIN Act should not be confused with the FTCA.

In other words, the WIIN Act and the FTCA are two completely separate processes with different legal standards. 

What is the difference between the WIIN Act and the Federal Tort Claims Act?

The WIIN Act was enacted on Dec. 16, 2016. It is primarily aimed at improving the nation’s water infrastructure. It also includes, under section 5004(c), a directive for EPA to pay “any claim made by a State, Indian tribe, or local government for eligible response costs relating to the Gold King Mine release” that occurred on Aug. 5, 2015.

Congress passed the Federal Tort Claims Act in 1946. This act allows citizens and private entities to file suit against the federal government for damages. However, when passing the Federal Tort Claims Act, Congress wanted to encourage government agencies to take action without the fear of paying damages in the event something went wrong while taking the action. So the act does not authorize federal agencies to pay claims resulting from government actions that are discretionary – that is, acts of a governmental nature or function and that involve the exercise of judgment.

Because EPA was conducting a site investigation at the Gold King Mine under CERCLA, the Agency’s work is considered a “discretionary function” under this law. Therefore, the circumstances surrounding the Gold King Mine incident do not meet the conditions necessary to pay claims.

What are considered “eligible response costs” under the WIIN Act?

“Eligible response costs” under the WIIN Act must be “response” costs under CERCLA and include:

  • Response costs incurred through Sept. 9, 2016.
  • Response costs incurred after Sept. 9, 2016, that EPA preapproved.

These response costs must also be consistent with the National Oil and Hazardous Substances Pollution Contingency Plan to be eligible for reimbursement.

Gold King Mine was added to the Superfund National Priorities List on Sept. 9, 2016, as part of the Bonita Peak Mining District site. After the site was listed, the Superfund remedial program started taking steps towards cleanup, and the WIIN Act requires other government entities to get prior approval for response costs incurred after that date to be eligible for reimbursement.

Who does the WIIN Act apply to?

Section 5004(c) of the WIIN Act directs EPA to pay “any claim made by a State, Indian tribe, or local government for eligible response costs relating to the Gold King Mine release.”

Which criteria were unaffected by the WIIN Act?

The WIIN Act does not alter other required reimbursements criteria. Reimbursement applications must still include adequate cost documentation. Costs incurred must relate to response costs associated with the Gold King Mine release. And payment must satisfy federal cost principles. These response costs must also be consistent with the National Oil and Hazardous Substances Pollution Contingency Plan to be eligible for reimbursement.

Has EPA evaluated all the reimbursement requests?

For those requests that came in prior to December 16, 2016, EPA has evaluated them in accordance with the WIIN Act and is currently in the process of paying reimbursements to those with adequate documentation and justification. EPA is still evaluating other reimbursement requests, some of which were received after December 16, 2016.

How quickly will EPA finish reviewing and deciding on the remainder of the WIIN Act claims?

States, local and tribal governments have a deadline of June 14, 2017, for submitting reimbursement claims to EPA for consideration. EPA should make eligibility and payment decisions within 90 days of receipt, presuming adequate documentation.

How much financial assistance has EPA provided to date?

To date, EPA has spent more than $29 million on immediate and long-term actions to address the incident. EPA has reimbursed state, tribal and local governments more than $3.5 million for costs related to the emergency response after the release.

What is the timeline for deciding on and paying reimbursements under the WIIN Act?

The WIIN Act requires a decision on and payment of eligible response costs within a 90-day timeframe. This means that:

  • For costs submitted no later than Dec. 16, 2016: If the costs were not paid or evaluated for payment because they were incurred after the end of the emergency response, EPA should evaluate the costs in light of this guidance, and if necessary, pay by March 16, 2017, presuming adequate documentation.
  • If the costs were incurred prior to the end of the emergency response and were disallowed, EPA does not need to reevaluate those costs unless the WIIN Act would change those determinations.
  • For costs submitted to EPA for evaluation after Dec. 16, 2016, eligibility and payment decisions should be made within 90 days of receipt, presuming adequate documentation.

Which costs are disallowed for reimbursement?

Examples of disallowed costs include requests to construct new infrastructure, purchase emergency response vehicles not used during the response, hire new staff, or pay for outside counsel who may have been used to explore pursuing legal action against EPA.