[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 774 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 774

    To provide for the stabilization, enhancement, restoration, and 
         management of the Coeur d'Alene River basin watershed.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 21, 1997

  Mr. Craig (for himself and Mr. Kempthorne) introduced the following 
bill; which was read twice and referred to the Committee on Environment 
                            and Public Works

_______________________________________________________________________

                                 A BILL


 
    To provide for the stabilization, enhancement, restoration, and 
         management of the Coeur d'Alene River basin watershed.

    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 ``Coeur d'Alene River Basin 
Environmental Restoration Act of 1997''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to provide for the stabilization, enhancement, 
        restoration, and management of the Coeur d'Alene River basin to 
        the extent necessary to repair and mitigate environmental 
        damage caused by past mining development;
            (2) to reduce any unacceptable risks to human health in the 
        Coeur d'Alene River basin;
            (3) to improve the surface waters of the Coeur d'Alene 
        River basin;
            (4) to develop and implement a comprehensive watershed 
        management and enhancement plan for the Coeur d'Alene River 
        basin; and
            (5) to authorize the funds necessary to implement the plan 
        and this Act.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Action plan.--The term ``action plan'' means the plan 
        for the stabilization, enhancement, restoration, and management 
        of the Coeur d'Alene River basin prepared under section 5(a).
            (2) Bunker hill superfund facility.--The term ``Bunker Hill 
        Superfund Facility'' means the 21-square mile area known by 
        that name that is listed on the National Priorities List 
        established under section 105(a)(8)(B) of the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 1980 
        (42 U.S.C. 9605(a)(8)(B)) as of the date of enactment of this 
        Act.
            (3) Coeur d'alene river basin.--The term ``Coeur d'Alene 
        River basin'' means the watersheds in northern Idaho, including 
        the Bunker Hill Superfund Facility, that contain--
                    (A) the South Fork of the Coeur d'Alene River and 
                tributaries of the fork;
                    (B) Beaver and Prichard Creeks, which are 
                tributaries of the North Fork of the Coeur d'Alene 
                River;
                    (C) the main stream of the Coeur d'Alene River 
                below the South Fork, including the lateral lakes;
                    (D) Lake Coeur d'Alene; and
                    (E) any area downstream of Lake Coeur d'Alene that 
                is allegedly affected by mining-related activities in 
                the areas described in subparagraphs (A) through (D).
            (4) Commission.--The term ``Commission'' means the Coeur 
        d'Alene River Basin Commission established by section 6.
            (5) Fund.--The term ``Fund'' means the Coeur d'Alene Trust 
        Fund established by section 4.
            (6) Governor.--The term ``Governor'' means the Governor of 
        the State of Idaho.
            (7) Person.--The term ``person'' means--
                    (A) an individual, firm, corporation, association, 
                partnership, consortium, joint venture, or commercial 
                entity;
                    (B) the Federal Government; or
                    (C) a State, municipality, commission, political 
                subdivision of a State, Indian tribe, or interstate 
                body.
            (8) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

SEC. 4. COEUR D'ALENE TRUST FUND.

    (a) Establishment.--There is established in the Treasury of the 
United States a trust fund to be known as the ``Coeur d'Alene Trust 
Fund'', consisting of--
            (1) amounts that are appropriated to the Fund under section 
        10;
            (2) amounts that are redirected to the Fund under 
        subsection (b);
            (3) amounts contributed under section 7(a)(2)(A)(i);
            (4) amounts contributed by any other person or trust; and
            (5) any interest earned on investment of amounts in the 
        Fund under subsection (d).
    (b) Redirection of Funds.--All cash and other assets received, and 
to be received, by the Natural Resource Trustees, as specified in the 
Second Modified Amended Joint and Substantively Consolidated Plan of 
Reorganization filed in United States Bankruptcy Court for the District 
of Idaho, Case No. 93-02986 and Case No. 93-02987, and in any 
subsequent plans or orders issued by the court in those proceedings, 
shall be contributed to the Fund.
    (c) Expenditures From Fund.--
            (1) In general.--Subject to paragraph (2), on request of 
        the Secretary, the Secretary of the Treasury shall transfer 
        from the Fund to the Secretary, without further Act of 
        appropriation, such amounts as are required pursuant to 
        paragraph (2) and sections 5 and 8 to carry out this Act.
            (2) Administrative expenses.--An amount not exceeding 10 
        percent of the expenditures made under this Act for each fiscal 
        year shall be available during the fiscal year to pay 
        administrative expenses in carrying out this Act.
    (d) Investment of Funds.--
            (1) In general.--The Secretary of the Treasury shall invest 
        such portion of the Fund as is not, in the judgment of the 
        Secretary of the Treasury, required to meet current 
        withdrawals. Investments may be made only in interest-bearing 
        obligations of the United States.
            (2) Acquisition of obligations.--For the purpose of 
        investments under paragraph (1), obligations may be acquired--
                    (A) on original issue at the issue price; or
                    (B) by purchase of outstanding obligations at the 
                market price.
            (3) Sale of obligations.--Any obligation acquired by the 
        Fund may be sold by the Secretary of the Treasury at the market 
        price.
            (4) Credits to the fund.--The interest on, and the proceeds 
        from the sale or redemption of, any obligations held in the 
        Fund shall be credited to and form a part of the Fund.
    (e) Transfers of Amounts.--
            (1) In general.--The amounts required to be transferred to 
        the Fund under this section shall be transferred at least 
        monthly from the general fund of the Treasury to the Fund on 
        the basis of estimates made by the Secretary of the Treasury.
            (2) Adjustments.--Proper adjustment shall be made in 
        amounts subsequently transferred to the extent prior estimates 
        were in excess of or less than the amounts required to be 
        transferred.
    (f) Financial Statements.--In conformance with generally accepted 
accounting principles, the Secretary shall prepare annual financial 
statements concerning expenditures from the Fund. The financial 
statements shall be audited annually by the Comptroller General of the 
United States.

SEC. 5. ACTION PLAN.

    (a) Development.--At the request of the Governor, the Secretary 
shall request from the Secretary of the Treasury and provide to the 
State of Idaho amounts from the Fund, up to a maximum of $1,000,000, 
for the Commission to use to develop an action plan to support and 
enhance natural recovery of the Coeur d'Alene River basin through cost-
effective measures, which may vary from location to location, in the 
Coeur d'Alene River basin.
    (b) Practices.--The action plan shall embody cost-effective 
practices designed to achieve--
            (1) reductions of discharges of historic mine drainage, to 
        the extent appropriate and feasible;
            (2) isolation, capping, or removal of mine tailings, 
        concentrates, or other mining waste to the extent appropriate 
        and feasible;
            (3) improvement of habitat by adding plantings and reducing 
        exposures of certain fish and wildlife to heavy metals;
            (4) stabilization of river banks and rights-of-way; and
            (5) any other appropriate restoration options that are 
        consistent with this Act.
    (c) Contents.--The action plan shall--
            (1) identify priority programs, activities, and projects 
        for addressing mining waste and discharges and other point and 
        nonpoint sources of elevated concentrations of metals created 
        prior to the date of enactment of this Act;
            (2) describe the methods for funding and schedules for the 
        programs, activities, and projects, including the use of 
        Federal and other sources of funds;
            (3) include a strategy for--
                    (A) environmental improvement of the Coeur d'Alene 
                River basin, in light of any final, approved total 
                maximum daily load for the South Fork of the Coeur 
                d'Alene drainage developed under section 303(d) of the 
                Federal Water Pollution Control Act (33 U.S.C. 
                1313(d)); and
                    (B) the promotion of prevention and management 
                practices to reduce the quantity of nutrient loading in 
                the Coeur d'Alene River basin;
            (4) characterize and assess relevant data on environmental 
        problems of the Coeur d'Alene River basin, including assessment 
        of trends in water quality, natural resources, and use of Coeur 
        d'Alene River basin resources;
            (5) to the extent practicable, use and incorporate--
                    (A) available Federal and tribal studies and data; 
                and
                    (B) plans prepared, and priorities established by, 
                the State of Idaho or private parties (including the 
                Coeur d'Alene River Basin Restoration Project Citizens' 
                Advisory Committee) for the stabilization, enhancement, 
                and restoration of the Coeur d'Alene River basin; and
            (6) include procedures for public comment on the contents 
        and implementation of the action plan.
    (d) Implementation.--
            (1) Submission of action plan.--The Governor shall submit a 
        completed action plan to the Secretary by the date that is 2 
        years after the date of enactment of this Act.
            (2) Payment of balance of fund.--Immediately on submission 
        of the action plan by the Governor, the Secretary shall provide 
        the remaining amounts in the Fund to the State of Idaho, to be 
        held in trust to fund the implementation of the action plan by 
        the Governor, in conjunction with the Commission.
    (e) Powers of the Secretary.--As necessary in carrying out this Act 
and without regard to chapter 35 of title 44, United States Code, the 
Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 
et seq.), the Public Buildings Act of 1959 (40 U.S.C. 601 et seq.), or 
any other Federal law relating to reduction of paperwork, acquisition 
of property and administrative services, or public buildings, the 
Secretary may use amounts in the Fund to--
            (1) enter into contracts, agreements, and other 
        arrangements, including financial arrangements for professional 
        services, supplies, construction, maintenance, management, and 
        operation of equipment;
            (2) purchase, lease, and otherwise dispose of real and 
        personal property; and
            (3) carry out such other activities, including the hiring 
        of staff, as are necessary to develop and implement the action 
        plan.
    (f) Gifts.--As necessary in carrying out this Act, the Secretary 
may accept, use, and dispose of gifts or donations of services and 
property.

SEC. 6. COEUR D'ALENE RIVER BASIN COMMISSION.

    (a) Establishment.--There is established a commission to be known 
as the ``Coeur d'Alene River Basin Commission'' to work in conjunction 
with the Governor in the development and implementation of the action 
plan. Except as provided in subsection (b), the members of the 
Commission shall be appointed by the Governor.
    (b) Membership.--The Commission shall consist of--
            (1) 1 representative of the Governor;
            (2) 1 representative of the Idaho Department of 
        Environmental Quality;
            (3) 1 representative of the Idaho Department of Lands;
            (4) 1 representative of the Environmental Protection 
        Agency, to be appointed by the Administrator of the 
        Environmental Protection Agency;
            (5) 1 representative of the Department of the Interior and 
        the Department of Agriculture, to be appointed jointly by the 
        Secretary of the Interior and the Secretary of Agriculture;
            (6) 1 representative of each of the county governments of 
        Benewah County, Kootenai County, and Shoshone County, Idaho;
            (7) 1 representative of the trustees established under the 
        settlement agreement of May 31, 1986, entered in State of Idaho 
        v. Bunker Hill Co., No. 83-3161 (D. Idaho);
            (8) 1 representative of the Coeur d'Alene Tribe, appointed 
        by the Tribe;
            (9) 2 representatives of the Coeur d'Alene River Basin 
        Restoration Project Citizens' Advisory Committee;
            (10) 1 representative of the mining industry; and
            (11) 1 representative of other affected industries.
    (c) Terms.--
            (1) In general.--The term of a member of the Commission 
        shall be 3 years.
            (2) Vacancies.--Any vacancy in the Commission shall be 
        filled in the manner in which the initial appointment was made.
    (d) Initial Appointments.--The initial members of the Commission 
shall be appointed not later than 90 days after the date of enactment 
of this Act.
    (e) Chairperson.--The members of the Commission shall elect 
annually a chairperson from among the members of the Commission.
    (f) Advisory Committees.--In working in conjunction with the 
Governor in the development and implementation of the action plan, the 
Commission shall appoint, and consult as appropriate--
            (1) a technical advisory committee; and
            (2) a citizens' advisory committee.
    (g) Employment Status.--
            (1) In general.--Except as provided in paragraph (2), a 
        member of the Commission shall not be considered to be an 
        officer or employee of the United States for any purpose.
            (2) Federal representatives.--A member of the Commission 
        appointed under paragraph (4) or (5) of subsection (b) may be 
        an officer or employee of the United States.
    (h) Procedures.--
            (1) Action by majority vote.--The Commission shall act by 
        simple majority vote of the Commission.
            (2) Availability to the public.--The Commission shall make 
        available to the public a statement of the organization, 
        practices, and procedures of the Commission.
            (3) Public hearings.--All Commission meetings shall be open 
        to the public.
    (i) Funding.--Funds made available under subsection (a) or (d) of 
section 5 shall be used to pay the necessary expenses of the 
Commission.

SEC. 7. LIMITATIONS ON LIABILITY.

    (a) Persons Engaged in Coeur d'Alene River Basin Activities.--
            (1) Stay.--
                    (A) In general.--On the motion of a person against 
                whom an administrative or judicial action described in 
                subparagraph (B) is pending on the date of enactment of 
                this Act or is brought after that date, the agency or 
                court shall stay the proceeding with respect to that 
                person until the earliest of--
                            (i) the date on which the person enters 
                        into an enforceable agreement under paragraph 
                        (2);
                            (ii) the date that is 2 years after the 
                        date on which the Governor submits the action 
                        plan to the Secretary under section 5; or
                            (iii) the date that is 5 years after the 
                        date of enactment of this Act.
                    (B) Action.--An action referred to in subparagraph 
                (A) is an action to impose liability under the 
                Comprehensive Environmental Response, Compensation, and 
                Liability Act of 1980 (42 U.S.C. 9601 et seq.), the 
                Federal Water Pollution Control Act (33 U.S.C. 1251 et 
                seq.), or the Solid Waste Disposal Act (42 U.S.C. 6901 
                et seq.) for any response cost, response or other 
                cleanup or corrective action, obligation, penalty, or 
                natural resource damage, within the Coeur d'Alene River 
                basin attributable to any release or threatened release 
                of a hazardous substance resulting from a mining or 
                mining-related activity in the Coeur d'Alene River 
                basin undertaken before the date of enactment of this 
                Act.
            (2) Enforceable agreements.--
                    (A) In general.--An enforceable agreement referred 
                to in paragraph (1) is an agreement entered into 
                between the State of Idaho and a person that--
                            (i) requires the person to contribute, over 
                        a period of up to 10 years, the person's fair 
                        share (which may include funds, land, interests 
                        in land, goods, or services) in an amount or 
                        value determined by the Governor, in 
                        conjunction with the Commission, after 
                        consideration of all relevant factors, 
                        including--
                                    (I) the past contributions and 
                                efforts and existing commitments of the 
                                person toward environmental improvement 
                                in the Coeur d'Alene River basin;
                                    (II) the importance of maintaining 
                                the viability of mining and the mining 
                                companies and other activities that 
                                have been active and continue to be 
                                active in the Coeur d'Alene River 
                                basin;
                                    (III) the estimated cost to 
                                implement the action plan;
                                    (IV) any waiver, release, 
                                settlement, or other agreement relating 
                                to the Coeur d'Alene River basin; and
                                    (V) any control strategy required 
                                by a final, approved total maximum 
                                daily load for the South Fork; and
                            (ii) requires the person to provide 
                        financial assurances and pay stipulated 
                        penalties adequate to guarantee performance 
                        under the agreement.
                    (B) Enforcement.--
                            (i) In general.--An enforceable agreement 
                        under subparagraph (A) shall be enforceable by 
                        any party to the agreement in a civil action 
                        brought in the United States District Court for 
                        the District of Idaho.
                            (ii) Attorney's fees.--A prevailing party 
                        in a civil action under clause (i) shall be 
                        entitled to attorney's fees and costs.
                    (C) Liability of persons that enter into 
                enforceable agreements.--A person that enters into an 
                enforceable agreement described in subparagraph (A) 
                shall not be subject to any action or liability for any 
                response cost, response or other cleanup or corrective 
                action, obligation, penalty, or natural resource damage 
                under the Comprehensive Environmental Response, 
                Compensation, and Liability Act of 1980 (42 U.S.C. 9601 
                et seq.), the Federal Water Pollution Control Act (33 
U.S.C. 1251 et seq.), or the Solid Waste Disposal Act (42 U.S.C. 6901 
et seq.) attributable to a release or threatened release of a hazardous 
substance resulting from mining or mining-related activity in the Coeur 
d'Alene River basin undertaken before the date of enactment of this 
Act, except as set forth in subparagraphs (A) and (B) of subsection 
(a)(3).
                    (D) Dismissal of action.--On the motion of a person 
                with respect to which a stay has been granted under 
                paragraph (1), the court shall dismiss the action with 
                respect to that person if the person enters into an 
                enforceable agreement under this paragraph.
            (3) No effect on liability under permits or certain consent 
        decrees and agreements.--This Act shall not have any effect 
        on--
                    (A) the liability or obligations of any person for 
                mining or mining-related activity in the Coeur d'Alene 
                River basin undertaken before the date of enactment of 
                this Act covered by a permit under any of the Acts 
                referred to in paragraph (1); or
                    (B) the terms of, or the obligations of any party, 
                under--
                            (i) the consent decrees entered in United 
                        States v. Asarco Inc., Civil No. 94-0206-N-HLR 
                        (D. Idaho) and United States v. Union Pacific 
                        Railroad Co., No. CV 95-152-N-HLR (D. Idaho);
                            (ii) the settlement agreement dated May 31, 
                        1986, entered in State of Idaho v. Bunker Hill 
                        Co., et al., No. CV 83-3161 (D. Idaho);
                            (iii) any settlement agreements entered in 
                        Coeur d'Alene Tribe v. ASARCO Inc., et al., No. 
                        CV 91-0342-N-EJL (D. Idaho);
                            (iv) the credit and tolling agreement dated 
                        March 22, 1996, between Hecla Mining Company 
                        and the State of Idaho.
    (b) Liability of the Governor, Commission, and State.--The 
Governor, the State of Idaho, and the Commission shall not be liable 
for--
            (1) any activity conducted by any of them in accordance 
        with the action plan or for any response cost, response or 
        other cleanup or corrective action, or operation and 
        maintenance of any water treatment system as a part of the 
        activity; or
            (2) any obligation or any penalty or natural resource 
        damages under the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
        seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 
        et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et 
        seq.), or any other Federal law for any release or threatened 
        release of a hazardous substance resulting from a mining 
        activity in the Coeur d'Alene River basin undertaken before the 
        date of enactment of this Act.
    (c) Innocent Landowners.--A person that has a current or former 
interest in real property shall not be liable for--
            (1) any response cost or response or other cleanup or 
        corrective action; or
            (2) any obligation or any penalty or natural resource 
        damages under the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
        seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 
        et seq.), or the Solid Waste Disposal Act (42 U.S.C. 6901 et 
        seq.);
that is attributable to any release or threatened release of a 
hazardous substance resulting from a mining activity in the Coeur 
d'Alene River basin undertaken before the date of enactment of this Act 
if the person establishes that any liability that the person would 
have, absent this subsection, would arise solely on the basis of the 
transport of the hazardous substance to the real property by air, 
surface, or groundwater pathways from outside the boundary of the real 
property.

SEC. 8. COOPERATIVE AGREEMENTS.

    (a) Authority.--The Secretary may enter into cooperative agreements 
with the Governor and the Commission to carry out activities necessary 
to implement the action plan.
    (b) Funding of Cooperative Agreements.--The Secretary shall obtain 
from the Fund such sums as are necessary to carry out activities under 
cooperative agreements entered into under subsection (a).

SEC. 9. EFFECT ON TRIBAL AUTHORITY.

    Nothing in this Act impairs, impedes, waives, prejudices, or in any 
way limits any civil or regulatory jurisdiction or inherent sovereign 
authority of the Coeur d'Alene Tribe over land, water, resources, or 
activities within the Coeur d'Alene Indian Reservation, but the Coeur 
d'Alene Tribe shall be bound by determinations that are made under and 
in accordance with this Act.

SEC. 10. FUNDING.

    (a) Authorization of Appropriations.--There are authorized to be 
appropriated to the Fund such sums as are necessary to carry out this 
Act.
    (b) Other Funding.--The Secretary, the Secretary of the Interior, 
the Secretary of Agriculture, and the Administrator of the 
Environmental Protection Agency may use research, development, 
demonstration, and other appropriated funds, in a manner consistent 
with the purposes for which the funds are appropriated, to carry out 
activities that are part of, or consistent with, the action plan.
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