[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3299 Introduced in House (IH)]







107th CONGRESS
  1st Session
                                H. R. 3299

To provide for the conveyance of certain real property in South Dakota 
to the State of South Dakota with indemnification by the United States 
                              Government.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 15, 2001

  Mr. Thune introduced the following bill; which was referred to the 
                         Committee on Resources

_______________________________________________________________________

                                 A BILL


 
To provide for the conveyance of certain real property in South Dakota 
to the State of South Dakota with indemnification by the United States 
                              Government.

    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 ``Homestake Mine Conveyance Act of 
2001''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the United States is among the leading nations in the 
        world in conducting basic scientific research;
            (2) that leadership position strengthens the economy and 
        national defense of the United States and provides other 
        important benefits;
            (3) the Homestake Mine in Lead, South Dakota, owned by the 
        Homestake Mining Company of California, is approximately 8,000 
        feet deep and is situated in a unique physical setting that is 
        ideal for carrying out certain types of particle physics and 
        other research;
            (4) the Mine has been selected by the National Underground 
        Science Laboratory Committee, an independent panel of 
        distinguished scientists, as the preferred site for the 
        construction of the National Underground Science Laboratory;
            (5) such a laboratory would be used to conduct scientific 
        research that would be funded and recognized as significant by 
        the United States;
            (6) the establishment of the laboratory is in the national 
        interest, and would substantially improve the capability of the 
        United States to conduct important scientific research;
            (7) for economic reasons, Homestake intends to cease 
        operations at the Mine in 2001;
            (8) on cessation of operations of the Mine, Homestake 
        intends to implement reclamation actions that would preclude 
        the establishment of a laboratory at the Mine;
            (9) Homestake has advised the State that, after cessation 
        of operations at the Mine, instead of closing the entire Mine, 
        Homestake is willing to donate the underground portion of the 
        Mine and certain other real and personal property of 
        substantial value at the Mine for use as the National 
        Underground Science Laboratory;
            (10) use of the Mine as the site for the laboratory, 
        instead of other locations under consideration, would result in 
        a savings of millions of dollars for the Federal Government;
            (11) if the Mine is selected as the site for the 
        laboratory, it is essential that closure of the Mine not 
        preclude the location of the laboratory at the Mine;
            (12) Homestake is unwilling to donate, and the State is 
        unwilling to accept, the property at the Mine for the 
        laboratory if Homestake and the State would continue to have 
        potential liability with respect to the transferred property; 
        and
            (13) to secure the use of the Mine as the location for the 
        laboratory, and to realize the benefits of the proposed 
        laboratory, it is necessary for the United States to--
                    (A) assume a portion of any potential future 
                liability of Homestake concerning the Mine; and
                    (B) address potential liability associated with the 
                operation of the laboratory.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Affiliate.--
                    (A) In general.--The term ``affiliate'' means any 
                corporation or other person that controls, is 
                controlled by, or is under common control with 
                Homestake.
                    (B) Inclusions.--The term ``affiliate'' includes a 
                director, officer, or employee of an affiliate.
            (3) Conveyance.--The term ``conveyance'' means the 
        conveyance of the Mine to the State under section 4(a).
            (4) Fund.--The term ``Fund'' means the Environment and 
        Project Trust Fund established under section 8.
            (5) Homestake.--
                    (A) In general.--The term ``Homestake'' means the 
                Homestake Mining Company of California, a California 
                corporation.
                    (B) Inclusion.--The term ``Homestake'' includes--
                            (i) a director, officer, or employee of 
                        Homestake;
                            (ii) an affiliate of Homestake; and
                            (iii) any successor of Homestake or 
                        successor to the interest of Homestake in the 
                        Mine.
            (6) Independent entity.--The term ``independent entity'' 
        means an independent entity selected jointly by Homestake, the 
        South Dakota Department of Environment and Natural Resources, 
        and the Administrator--
                    (A) to conduct a due diligence inspection under 
                section 4(b)(2)(A); and
                    (B) to determine the fair value of the Mine under 
                section 5(a).
            (7) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given the term in section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450b).
            (8) Laboratory.--
                    (A) In general.--The term ``laboratory'' means the 
                national underground science laboratory proposed to be 
                established at the Mine after the conveyance.
                    (B) Inclusion.--The term ``laboratory'' includes 
                operating and support facilities of the laboratory.
            (9) Mine.--
                    (A) In general.--The term ``Mine'' means the 
                portion of the Homestake Mine in Lawrence County, South 
                Dakota, proposed to be conveyed to the State for the 
                establishment and operation of the laboratory.
                    (B) Inclusions.--The term ``Mine'' includes--
                            (i) real property, mineral and oil and gas 
                        rights, shafts, tunnels, structures, backfill, 
                        broken rock, fixtures, facilities, and personal 
                        property to be conveyed for establishment and 
                        operation of the laboratory, as agreed upon by 
                        Homestake and the State; and
                            (ii) any water that flows into the Mine 
                        from any source.
                    (C) Exclusions.--The term ``Mine'' does not 
                include--
                            (i) the feature known as the ``Open Cut'';
                            (ii) any tailings or tailings storage 
                        facility (other than backfill in the portion of 
                        the Mine described in subparagraph (A)); or
                            (iii) any waste rock or any site used for 
                        the dumping of waste rock (other than broken 
                        rock in the portion of the Mine described in 
                        subparagraph (A)).
            (10) Person.--The term ``person'' means--
                    (A) an individual;
                    (B) a trust, firm, joint stock company, corporation 
                (including a government corporation), partnership, 
                association, limited liability company, or any other 
                type of business entity;
                    (C) a State or political subdivision of a State;
                    (D) a foreign governmental entity;
                    (E) an Indian tribe; and
                    (F) any department, agency, or instrumentality of 
                the United States.
            (11) Project sponsor.--The term ``project sponsor'' means 
        an entity that manages or pays the costs of 1 or more projects 
        that are carried out or proposed to be carried out at the 
        laboratory.
            (12) Scientific advisory board.--The term ``Scientific 
        Advisory Board'' means the entity designated in the management 
        plan of the laboratory to provide scientific oversight for the 
        operation of the laboratory.
            (13) State.--
                    (A) In general.--The term ``State'' means the State 
                of South Dakota.
                    (B) Inclusions.--The term ``State'' includes an 
                institution, agency, officer, or employee of the State.

SEC. 4. CONVEYANCE OF REAL PROPERTY.

    (a) In General.--
            (1) Delivery of documents.--Subject to paragraph (2) and 
        subsection (b) and notwithstanding any other provision of law, 
        on the execution and delivery by Homestake of 1 or more quit-
        claim deeds or bills of sale conveying to the State all right, 
        title, and interest of Homestake in and to the Mine, title to 
        the Mine shall pass from Homestake to the State.
            (2) Condition of mine on conveyance.--The Mine shall be 
        conveyed as is, with no representations as to the condition of 
        the property.
    (b) Requirements for Conveyance.--
            (1) In general.--As a condition precedent of conveyance and 
        of the assumption of liability by the United States in 
        accordance with this Act, the Administrator shall accept the 
        final report of the independent entity under paragraph (3).
            (2) Due diligence inspection.--
                    (A) In general.--As a condition precedent of 
                conveyance and of Federal participation described in 
                this Act, Homestake shall permit an independent entity 
                to conduct a due diligence inspection of the Mine to 
                determine whether any condition of the Mine may pose an 
                imminent and substantial threat to human health or the 
                environment.
                    (B) Consultation.--As a condition precedent of the 
                conduct of a due diligence inspection, Homestake, the 
                South Dakota Department of Environment and Natural 
                Resources, the Administrator, and the independent 
                entity shall consult and agree upon the methodology and 
                standards to be used, and other factors to be 
                considered, by the independent entity in--
                            (i) the conduct of the due diligence 
                        inspection;
                            (ii) the scope of the due diligence 
                        inspection; and
                            (iii) the time and duration of the due 
                        diligence inspection.
            (3) Report to the administrator.--
                    (A) In general.--The independent entity shall 
                submit to the Administrator a report that--
                            (i) describes the results of the due 
                        diligence inspection under paragraph (2); and
                            (ii) identifies any condition of or in the 
                        Mine that may pose an imminent and substantial 
                        threat to human health or the environment.
                    (B) Procedure.--
                            (i) Draft report.--Before finalizing the 
                        report under this paragraph, the independent 
                        entity shall--
                                    (I) issue a draft report;
                                    (II) submit to the Administrator, 
                                Homestake, and the State a copy of the 
                                draft report;
                                    (III) issue a public notice 
                                requesting comments on the draft report 
                                that requires all such comments to be 
                                filed not later than 45 days after 
                                issuance of the public notice; and
                                    (IV) during that 45-day public 
                                comment period, conduct at least 1 
                                public hearing in Lead, South Dakota, 
                                to receive comments on the draft 
                                report.
                            (ii) Final report.--In the final report 
                        submitted to the Administrator under this 
                        paragraph, the independent entity shall respond 
                        to, and incorporate necessary changes suggested 
                        by, the comments received on the draft report.
            (4) Review and approval by administrator.--
                    (A) In general.--Not later than 60 days after 
                receiving the final report under paragraph (3), the 
                Administrator shall--
                            (i) review the report; and
                            (ii) notify the State in writing of 
                        acceptance or rejection of the final report.
                    (B) Conditions for rejection.--The Administrator 
                may reject the final report only if the Administrator 
                identifies 1 or more conditions of the Mine that--
                            (i) may pose an imminent and substantial 
                        threat to human health or the environment, as 
                        determined by the Administrator; and
                            (ii) require response action to correct 
                        each condition that may pose an imminent and 
                        substantial threat to human health or the 
                        environment identified under clause (i) before 
                        conveyance and assumption by the Federal 
                        Government of liability concerning the Mine 
                        under this Act.
                    (C) Response actions and certification.--
                            (i) Response actions.--
                                    (I) In general.--If the 
                                Administrator rejects the final report, 
                                Homestake may carry out or bear the 
                                cost of, or permit the State or another 
                                person to carry out or bear the cost 
                                of, such response actions as are 
                                necessary to correct any condition 
                                identified by the Administrator under 
                                subparagraph (B)(i) that may pose an 
                                imminent and substantial threat to 
                                human health or the environment.
                                    (II) Long-term response actions.--
                                            (aa) In general.--In a case 
                                        in which the Administrator 
                                        determines that a condition 
                                        identified by the Administrator 
                                        under subparagraph (B)(i) 
                                        requires continuing response 
                                        action, or response action that 
                                        can be completed only as part 
                                        of the final closure of the 
                                        laboratory, it shall be a 
                                        condition of conveyance that 
                                        Homestake, the State, or 
                                        another person deposit into the 
                                        Fund such amount as is 
                                        estimated by the independent 
                                        entity, on a net present value 
                                        basis and after taking into 
                                        account estimated interest on 
                                        that basis, to be sufficient to 
                                        pay the costs of the long-term 
                                        response action or the response 
                                        action that will be completed 
                                        as part of the final closure of 
                                        the laboratory.
                                            (bb) Limitation on use of 
                                        funds.--None of the funds 
                                        deposited into the Fund under 
                                        item (aa) shall be expended for 
                                        any purpose other than to pay 
                                        the costs of the long-term 
                                        response action, or the 
                                        response action that will be 
                                        completed as part of the final 
                                        closure of the Mine, identified 
                                        under that item.
                            (ii) Contribution by homestake.--The total 
                        amount that Homestake may expend, pay, or 
                        deposit into the Fund under subclauses (I) and 
                        (II) of clause (i) shall not exceed--
                                    (I) $75,000,000; less
                                    (II) the fair value of the Mine as 
                                determined under section 5(a).
                            (iii) Certification.--
                                    (I) In general.--After any response 
                                actions described in clause (i)(I) are 
                                carried out and any required funds are 
                                deposited under clause (i)(II), the 
                                independent entity may certify to the 
                                Administrator that the conditions for 
                                rejection identified by the 
                                Administrator under subparagraph (B) 
                                have been corrected.
                                    (II) Acceptance or rejection of 
                                certification.--Not later than 60 days 
                                after an independent entity makes a 
                                certification under subclause (I), the 
                                Administrator shall accept or reject 
                                the certification.
    (c) Review of Conveyance.--For the purposes of the conveyance, the 
requirements of this section shall be considered to be sufficient to 
meet any requirement of the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.).

SEC. 5. ASSESSMENT OF PROPERTY.

    (a) Valuation of Property.--The independent entity shall assess the 
fair value of the Mine.
    (b) Fair Value.--For the purposes of this section, the fair value 
of the Mine shall include the estimated cost, as determined by the 
independent entity under subsection (a), of replacing the shafts, 
winzes, hoists, tunnels, ventilation system, and other equipment and 
improvements at the Mine that are expected to be used at, or that will 
be useful to, the laboratory.
    (c) Report.--Not later than the date on which each report developed 
in accordance with section 4(b)(3) is submitted to the Administrator, 
the independent entity described in subsection (a) shall submit to the 
State a report that identifies the fair value assessed under subsection 
(a).

SEC. 6. LIABILITY.

    (a) Assumption of Liability.--
            (1) In general.--Subject to paragraph (2), notwithstanding 
        any other provision of law, on completion of the conveyance in 
        accordance with this Act, the United States shall assume any 
        and all liability relating to the Mine and laboratory, 
        including liability for--
                    (A) damages;
                    (B) reclamation;
                    (C) the costs of response to any hazardous 
                substance (as defined in section 101 of the 
                Comprehensive Environmental Response, Compensation, and 
                Liability Act of 1980 (42 U.S.C. 9601)), contaminant, 
                or other material on, under, or relating to the Mine 
                and laboratory; and
                    (D) closure of the Mine and laboratory.
            (2) Claims against united states.--The United States shall 
        be liable for response costs under paragraph (1)(C) only to the 
        extent that an award of response costs is made in a civil 
        action brought under--
                    (A) the Federal Water Pollution Control Act (33 
                U.S.C. 1251 et seq.);
                    (B) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
                seq.);
                    (C) the Comprehensive Environmental Response, 
                Compensation, and Liability Act of 1980 (42 U.S.C. 9601 
                et seq.); or
                    (D) any other applicable Federal environmental law, 
                as determined by the Administrator.
    (b) Liability Protection.--On completion of the conveyance, neither 
Homestake nor the State shall be liable to any person or the United 
States for injuries, costs, injunctive relief, reclamation, damages 
(including damages to natural resources or the environment), or 
expenses, or liable under any other claim (including claims for 
indemnification or contribution, claims by third parties for death, 
personal injury, illness, or loss of or damage to property, or claims 
for economic loss), under any law (including a regulation) for any 
claim arising out of or in connection with contamination, pollution, or 
other condition, use, or closure of the Mine and laboratory, regardless 
of when a condition giving rise to the liability originated or was 
discovered.
    (c) Indemnification.--Notwithstanding any other provision of law, 
on completion of the conveyance in accordance with this Act, the United 
States shall indemnify, defend, and hold harmless Homestake and the 
State from and against--
            (1) any and all liabilities and claims described in 
        subsection (a), without regard to any limitation under 
        subsection (a)(2); and
            (2) any and all liabilities and claims described in 
        subsection (b).
    (d) Waiver of Sovereign Immunity.--For the purposes of this Act, 
the United States waives any claim to sovereign immunity.
    (e) Timing for Assumption of Liability.--If the conveyance is 
effectuated by more than 1 legal transaction, the assumption of 
liability, liability protection, indemnification, and waiver of 
sovereign immunity provided for under this section shall apply to each 
legal transaction, as of the date on which the transaction is completed 
and with respect to such portion of the Mine as is conveyed under that 
transaction.
    (f) Exceptions for Homestake Claims.--Nothing in this section 
constitutes an assumption of liability by the United States, or relief 
of liability of Homestake, for--
            (1) any unemployment, worker's compensation, or other 
        employment-related claim or cause of action of an employee of 
        Homestake that arose before the date of conveyance;
            (2) any claim or cause of action that arose before the date 
        of conveyance, other than an environmental claim or a claim 
        concerning natural resources;
            (3) any violation of any provision of criminal law; or
            (4) any claim, injury, damage, liability, or reclamation or 
        cleanup obligation with respect to any property or asset that 
        is not conveyed under this Act, except to the extent that any 
        such claim, injury, damage, liability, or reclamation or 
        cleanup obligation arises out of the continued existence or use 
        of the Mine subsequent to the date of conveyance.

SEC. 7. INSURANCE COVERAGE.

    (a) Property and Liability Insurance.--
            (1) In general.--To the extent property and liability 
        insurance is available and subject to the requirements 
        described in paragraph (2), the State shall purchase property 
        and liability insurance for the Mine and the operation of the 
        laboratory to provide coverage against the liability described 
        in subsections (a) and (b) of section 6.
            (2) Requirements.--The requirements referred to in 
        paragraph (1) are the following:
                    (A) Terms of insurance.--In determining the type, 
                extent of coverage, and policy limits of insurance 
                purchased under this subsection, the State shall--
                            (i) periodically consult with the 
                        Administrator and the Scientific Advisory 
                        Board; and
                            (ii) consider certain factors, including--
                                    (I) the nature of the projects and 
                                experiments being conducted in the 
                                laboratory;
                                    (II) the availability and cost of 
                                commercial insurance; and
                                    (III) the amount of funding 
                                available to purchase commercial 
                                insurance.
                    (B) Additional terms.--The insurance purchased by 
                the State under this subsection may provide coverage 
                that is--
                            (i) secondary to the insurance purchased by 
                        project sponsors; and
                            (ii) in excess of amounts available in the 
                        Fund to pay any claim.
            (3) Financing of insurance purchase.--
                    (A) In general.--Subject to section 8, the State 
                may finance the purchase of insurance required under 
                this subsection by using--
                            (i) funds made available from the Fund; and
                            (ii) such other funds as are received by 
                        the State for the purchase of insurance for the 
                        Mine and laboratory.
                    (B) No requirement to use state funds.--Nothing in 
                this Act requires the State to use State funds to 
                purchase insurance required under this subsection.
            (4) Additional insured.--Any insurance purchased by the 
        State under this subsection shall--
                    (A) name the United States as an additional 
                insured; or
                    (B) otherwise provide that the United States is a 
                beneficiary of the insurance policy having the primary 
                right to enforce all rights of the United States under 
                the policy.
            (5) Termination of obligation to purchase insurance.--The 
        obligation of the State to purchase insurance under this 
        subsection shall terminate on the date on which--
                    (A) the Mine ceases to be used as a laboratory; or
                    (B) sufficient funding ceases to be available for 
                the operation and maintenance of the Mine or 
                laboratory.
    (b) Project Insurance.--
            (1) In general.--The State, in consultation with the 
        Administrator and the Scientific Advisory Board, may require, 
        as a condition of approval of a project for the laboratory, 
        that a project sponsor provide property and liability insurance 
        or other applicable coverage for potential liability associated 
        with the project described in subsections (a) and (b) of 
        section 6.
            (2) Additional insured.--Any insurance obtained by the 
        project sponsor under this section shall--
                    (A) name the State and the United States as 
                additional insureds; or
                    (B) otherwise provide that the State and the United 
                States are beneficiaries of the insurance policy having 
                the primary right to enforce all rights under the 
                policy.
    (c) State Insurance.--
            (1) In general.--To the extent required by State law, the 
        State shall purchase, with respect to the operation of the Mine 
        and the laboratory--
                    (A) unemployment compensation insurance; and
                    (B) worker's compensation insurance.
            (2) Prohibition on use of funds from fund.--A State shall 
        not use funds from the Fund to carry out paragraph (1).

SEC. 8. ENVIRONMENT AND PROJECT TRUST FUND.

    (a) Establishment.--On completion of the conveyance, the State 
shall establish, in an interest-bearing account at an accredited 
financial institution located within the State, the Environment and 
Project Trust Fund.
    (b) Amounts.--The Fund shall consist of--
            (1) an annual deposit from the operation and maintenance 
        funding provided for the laboratory in an amount to be 
        determined--
                    (A) by the State, in consultation with the 
                Administrator and the Scientific Advisory Board; and
                    (B) after taking into consideration--
                            (i) the nature of the projects and 
                        experiments being conducted at the laboratory;
                            (ii) available amounts in the Fund;
                            (iii) any pending costs or claims that may 
                        be required to be paid out of the Fund; and
                            (iv) the amount of funding required for 
                        future actions associated with the closure of 
                        the facility;
            (2) an amount determined by the State, in consultation with 
        the Administrator and the Scientific Advisory Board, and to be 
        paid by the appropriate project sponsor, for each project to be 
        conducted, which amount--
                    (A) shall be used to pay--
                            (i) costs incurred in removing from the 
                        Mine or laboratory equipment or other materials 
                        related to the project;
                            (ii) claims arising out of or in connection 
                        with the project; and
                            (iii) if any portion of the amount remains 
                        after paying the expenses described in clauses 
                        (i) and (ii), other costs described in 
                        subsection (c); and
                    (B) may, at the discretion of the State, be 
                assessed--
                            (i) annually; or
                            (ii) in a lump sum as a prerequisite to the 
                        approval of the project;
            (3) interest earned on amounts in the Fund, which amount of 
        interest shall be used only for a purpose described in 
        subsection (c); and
            (4) all other funds received and designated by the State 
        for deposit in the Fund.
    (c) Expenditures From Fund.--Amounts in the Fund shall be used only 
for the purposes of funding--
            (1) waste and hazardous substance removal or remediation, 
        or other environmental cleanup at the Mine;
            (2) removal of equipment and material no longer used, or 
        necessary for use, in conjunction with a project conducted at 
        the laboratory;
            (3) a claim arising out of or in connection with the 
        conducting of such a project;
            (4) purchases of insurance by the State as required under 
        section 7;
            (5) payments for and other costs relating to liability 
        described in section 6; and
            (6) closure of the Mine and laboratory.
    (d) Federal Payments From Fund.--The United States--
            (1) to the extent the United States assumes liability under 
        section 6--
                    (A) shall be a beneficiary of the Fund; and
                    (B) may direct that amounts in the Fund be applied 
                to pay amounts and costs described in this section; and
            (2) may take action to enforce the right of the United 
        States to receive 1 or more payments from the Fund.
    (e) No Requirement of Deposit of Public Funds.--Nothing in this 
section requires the State to deposit State funds as a condition of the 
assumption by the United States of liability, or the relief of the 
State or Homestake from liability, under section 6.

SEC. 9. WASTE ROCK MIXING.

    After completion of the conveyance, the State shall obtain the 
approval of the Administrator before disposing of any material quantity 
of laboratory waste rock if--
            (1) the disposal site is on land not conveyed under this 
        Act; and
            (2) the State determines that the disposal could result in 
        commingling of laboratory waste rock with waste rock disposed 
        of by Homestake before the date of conveyance.

SEC. 10. REQUIREMENTS FOR OPERATION OF LABORATORY.

    After the conveyance, nothing in this Act exempts the laboratory 
from compliance with any law (including a Federal environmental law).

SEC. 11. CONTINGENCY.

    This Act shall be effective contingent on the selection, by the 
National Science Foundation, of the Mine as the site for the 
laboratory.

SEC. 12. OBLIGATION IN THE EVENT OF NONCONVEYANCE.

    If the conveyance under this Act does not occur, any obligation of 
Homestake relating to the Mine shall be limited to such reclamation or 
remediation as is required under any applicable law other than this 
Act.

SEC. 13. PAYMENT AND REIMBURSEMENT OF COSTS.

    The United States may seek payment--
            (1) from the Fund, under section 8(d), to pay or reimburse 
        the United States for amounts payable or liabilities incurred 
        under this Act; and
            (2) from available insurance, to pay or reimburse the 
        United States and the Fund for amounts payable or liabilities 
        incurred under this Act.

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act.
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