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<PRE>[DOCID: f:s1389is.txt]






107th CONGRESS
  1st Session
                                S. 1389

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, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2001

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

_______________________________________________________________________

                                 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, and for other purposes.

    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 a national underground 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 and close 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 carrying out those 
        reclamation actions, 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 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;
            (11) if the National Science Foundation selects the Mine as 
        the site for the laboratory, it is essential that Homestake not 
        complete certain reclamation activities that would 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 7.
            (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; and
                            (ii) an affiliate of Homestake.
            (6) 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.
            (7) 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, in-Mine 
                        backfill, in-Mine broken rock, fixtures, and 
                        personal property to be conveyed for 
                        establishment and operation of the laboratory, 
                        as agreed upon by Homestake, the State, and the 
                        Director of the laboratory; 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 in-Mine backfill); or
                            (iii) any waste rock or any site used for 
                        the dumping of waste rock (other than in-Mine 
                        broken rock).
            (8) 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; and
                    (E) any department, agency, or instrumentality of 
                the United States.
            (9) 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 
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        laboratory.
            (10) 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 conditions 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 or certification of the independent entity under 
        subparagraphs (A) through (E) of 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 
                that is selected jointly by Homestake, the South Dakota 
                Department of Environment and Natural Resources, and 
                the Administrator to conduct a due diligence inspection 
                of the Mine to determine whether any condition of the 
                Mine poses a substantial risk 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 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 poses a substantial risk 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 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) pose a substantial risk to human health 
                        or the environment, as determined by the 
                        Administrator; and
                            (ii) require response action to correct 
                        each condition causing the substantial risk to 
                        human health or the environment identified in 
                        clause (i) before conveyance and assumption by 
                        the Federal Government of liability concerning 
                        the Mine under this Act.
                    (C) Remedial measures and certification.--
                            (i) Remediation.--
                                    (I) In general.--If the 
                                Administrator rejects the final report, 
                                Homestake may carry out, or permit the 
                                State to carry out, such measures as 
                                are necessary to remove or remediate 
                                any condition identified by the 
                                Administrator under subparagraph (B)(i) 
                                as posing a substantial risk to human 
                                health or the environment.
                                    (II) Long-term remediation.--
                                            (aa) In general.--In a case 
                                        in which the Administrator 
                                        determines that a condition 
                                        identified by the Administrator 
                                        under subparagraph (B)(i) 
                                        requires continuing 
                                        remediation, or remediation 
                                        that can only be completed as 
                                        part of the final closure of 
                                        the Mine, it shall be a 
                                        condition of conveyance that 
                                        Homestake or the National 
                                        Science Foundation shall 
                                        deposit into the Fund such 
                                        funds as are necessary to pay 
                                        the costs of that remediation.
                                            (bb) Source of funds.--Any 
                                        funds deposited by the National 
                                        Science Foundation under this 
                                        paragraph shall be made 
                                        available from grant funding 
                                        provided for the construction 
               
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                         of the Laboratory.
                            (ii) Certification.--After the remedial 
                        measures described in clause (i)(I) are carried 
                        out and 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.
                            (iii) Acceptance or rejection of 
                        certification.--Not later than 60 days after an 
                        independent entity makes a certification under 
                        clause (ii), the Administrator shall accept or 
                        reject the certification.

SEC. 5. LIABILITY.

    (a) Assumption of Liability.--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--
            (1) damages;
            (2) reclamation;
            (3) 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
            (4) closure of the Mine and laboratory.
    (b) Liability Protection.--On completion of the conveyance, neither 
Homestake nor the State shall be--
            (1) 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; or
            (2) subject to any claim brought by or on behalf of the 
        United States under section 3730 of title 31, United States 
        Code, relating to negligence on the part of Homestake in 
        carrying out activities for the conveyance of, and in 
        conveying, the Mine.
    (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 any and all liabilities and claims described in 
subsections (a) and (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 of an employee of Homestake that arose 
        before the date of conveyance;
            (2) any claim or cause of action, other than an 
        environmental claim or a claim concerning natural resources, 
        that arose before the date of conveyance;
            (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. 6. INSURANCE COVERAGE.

    (a) Property and Liability Insurance.--
            (1) In general.--To the maximum extent practicable, 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 5.
            (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 Director of the National 
                        Science Foundation; and
                            (ii) consider certain factors, including--
                                    (I) the nature of the projects and 
                                experiments being conducted in the 
                                laboratory;
                                    (II) the availability 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 7, 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 th
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e Director of the National Science 
        Foundation, 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 5.
            (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. 7. 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, an 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 Director 
                of the National Science Foundation and the 
                Administrator; 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 Director of the National Science Foundation and the 
        Administrator, 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 6;
            (5) payments for and other costs relating to liability 
        described in section 5; 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 5--
                    (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 5.

SEC. 8. 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. 9. 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. 10. PAYMENT AND REIMBURSEMENT OF COSTS.

    The United States may seek payment--
            (1) from the Fund, under section 7(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. 11. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act.
                                 &lt;all&gt;

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