II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Homestake Mine Con5 veyance Act of 2001’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—
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1 (1) the United States is among the leading na2 tions in the world in conducting basic scientific re3 search;

4 (2) that leadership position strengthens the

5 economy and national defense of the United States

6 and provides other important benefits;

7 (3) the Homestake Mine in Lead, South Da8 kota, owned by the Homestake Mining Company of

9 California, is approximately 8,000 feet deep and is

10 situated in a unique physical setting that is ideal for

11 carrying out certain types of particle physics and

12 other research;

13 (4) the Mine has been selected by the National

14 Underground Science Laboratory Committee, an

15 independent panel of distinguished scientists, as the

16 preferred site for the construction of a national un17 derground laboratory;

18 (5) such a laboratory would be used to conduct

19 scientific research that would be funded and recog20 nized as significant by the United States;

21 (6) the establishment of the laboratory is in the

22 national interest, and would substantially improve

23 the capability of the United States to conduct impor24 tant scientific research;
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1 (7) for economic reasons, Homestake intends to

2 cease operations and close the Mine in 2001;

3 (8) on cessation of operations of the Mine,

4 Homestake intends to implement reclamation actions

5 that would preclude the establishment of a labora6 tory at the Mine;

7 (9) Homestake has advised the State that, after

8 cessation of operations at the Mine, instead of car9 rying out those reclamation actions, Homestake is

10 willing to donate the underground portion of the

11 Mine and certain other real and personal property of

12 substantial value at the Mine for use as the under13 ground science laboratory;

14 (10) use of the Mine as the site for the labora15 tory, instead of other locations under consideration,

16 would result in a savings of millions of dollars;

17 (11) if the National Science Foundation selects

18 the Mine as the site for the laboratory, it is essential

19 that Homestake not complete certain reclamation ac20 tivities that would preclude the location of the lab21 oratory at the Mine;

22 (12) Homestake is unwilling to donate, and the

23 State is unwilling to accept, the property at the

24 Mine for the laboratory if Homestake and the State
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1 would continue to have potential liability with re2 spect to the transferred property; and

3 (13) to secure the use of the Mine as the loca4 tion for the laboratory, and to realize the benefits of

5 the proposed laboratory, it is necessary for the

6 United States to—

7 (A) assume a portion of any potential fu8 ture liability of Homestake concerning the

9 Mine; and

10 (B) address potential liability associated

11 with the operation of the laboratory.

12 SEC. 3. DEFINITIONS.

13 In this Act:

14 (1) ADMINISTRATOR.—The term ‘‘Adminis15 trator’’ means the Administrator of the Environ16 mental Protection Agency.

17 (2) AFFILIATE.—

18 (A) IN GENERAL.—The term ‘‘affiliate’’

19 means any corporation or other person that

20 controls, is controlled by, or is under common

21 control with Homestake.

22 (B) INCLUSIONS.—The term ‘‘affiliate’’ in23 cludes a director, officer, or employee of an af24 filiate.
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1 (3) CONVEYANCE.—The term ‘‘conveyance’’

2 means the conveyance of the Mine to the State

3 under section 4(a).

4 (4) FUND.—The term ‘‘Fund’’ means the Envi5 ronment and Project Trust Fund established under

6 section 7.

7 (5) HOMESTAKE.—

8 (A) IN GENERAL.—The term ‘‘Homestake’’

9 means the Homestake Mining Company of Cali10 fornia, a California corporation.

11 (B) INCLUSION.—The term ‘‘Homestake’’

12 includes—

13 (i) a director, officer, or employee of

14 Homestake; and

15 (ii) an affiliate of Homestake.

16 (6) LABORATORY.—

17 (A) IN GENERAL.—The term ‘‘laboratory’’

18 means the national underground science labora19 tory proposed to be established at the Mine

20 after the conveyance.

21 (B) INCLUSION.—The term ‘‘laboratory’’

22 includes operating and support facilities of the

23 laboratory.

24 (7) MINE.—
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1 (A) IN GENERAL.—The term ‘‘Mine’’

2 means the portion of the Homestake Mine in

3 Lawrence County, South Dakota, proposed to

4 be conveyed to the State for the establishment

5 and operation of the laboratory.

6 (B) INCLUSIONS.—The term ‘‘Mine’’

7 includes—

8 (i) real property, mineral and oil and

9 gas rights, shafts, tunnels, structures, in10 Mine backfill, in-Mine broken rock, fix11 tures, and personal property to be con12 veyed for establishment and operation of

13 the laboratory, as agreed upon by

14 Homestake, the State, and the Director of

15 the laboratory; and

16 (ii) any water that flows into the Mine

17 from any source.

18 (C) EXCLUSIONS.—The term ‘‘Mine’’ does

19 not include—

20 (i) the feature known as the ‘‘Open

21 Cut’’;

22 (ii) any tailings or tailings storage fa23 cility (other than in-Mine backfill); or
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1 (iii) any waste rock or any site used

2 for the dumping of waste rock (other than

3 in-Mine broken rock).

4 (8) PERSON.—The term ‘‘person’’ means—

5 (A) an individual;

6 (B) a trust, firm, joint stock company, cor7 poration (including a government corporation),

8 partnership, association, limited liability com9 pany, or any other type of business entity;

10 (C) a State or political subdivision of a

11 State;

12 (D) a foreign governmental entity; and

13 (E) any department, agency, or instrumen14 tality of the United States.

15 (9) PROJECT SPONSOR.—The term ‘‘project

16 sponsor’’ means an entity that manages or pays the

17 costs of 1 or more projects that are carried out or

18 proposed to be carried out at the laboratory.

19 (10) STATE.—

20 (A) IN GENERAL.—The term ‘‘State’’

21 means the State of South Dakota.

22 (B) INCLUSIONS.—The term ‘‘State’’ in23 cludes an institution, agency, officer, or em24 ployee of the State.
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1 SEC. 4. CONVEYANCE OF REAL PROPERTY.

2 (a) IN GENERAL.—

3 (1) DELIVERY OF DOCUMENTS.—Subject to

4 paragraph (2) and subsection (b) and notwith5 standing any other provision of law, on the execution

6 and delivery by Homestake of 1 or more quit-claim

7 deeds or bills of sale conveying to the State all right,

8 title, and interest of Homestake in and to the Mine,

9 title to the Mine shall pass from Homestake to the

10 State.

11 (2) CONDITION OF MINE ON CONVEYANCE.—

12 The Mine shall be conveyed as is, with no represen13 tations as to the conditions of the property.

14 (b) REQUIREMENTS FOR CONVEYANCE.—

15 (1) IN GENERAL.—As a condition precedent of

16 conveyance and of the assumption of liability by the

17 United States in accordance with this Act, the Ad18 ministrator shall accept the final report or certifi19 cation of the independent entity under subpara20 graphs (A) through (E) of paragraph (3).

21 (2) DUE DILIGENCE INSPECTION.—

22 (A) IN GENERAL.—As a condition prece23 dent of conveyance and of Federal participation

24 described in this Act, Homestake shall permit

25 an independent entity that is selected jointly by

26 Homestake, the South Dakota Department of
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1 Environment and Natural Resources, and the

2 Administrator to conduct a due diligence in3 spection of the Mine to determine whether any

4 condition of the Mine poses a substantial risk

5 to human health or the environment.

6 (B) CONSULTATION.—As a condition

7 precedent of the conduct of a due diligence in8 spection, Homestake, the South Dakota Depart9 ment of Environment and Natural Resources,

10 the Administrator, and the independent entity

11 shall consult and agree upon the methodology

12 and standards to be used, and other factors to

13 be considered, by the independent entity in—

14 (i) the conduct of the due diligence in15 spection;

16 (ii) the scope of the due diligence in17 spection; and

18 (iii) the time and duration of the due

19 diligence inspection.

20 (3) REPORT TO ADMINISTRATOR.—

21 (A) IN GENERAL.—The independent entity

22 shall submit to the Administrator a report

23 that—
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1 (i) describes the results of the due

2 diligence inspection under paragraph (2);

3 and

4 (ii) identifies any condition of or in

5 the Mine that poses a substantial risk to

6 human health or the environment.

7 (B) PROCEDURE.—

8 (i) DRAFT REPORT.—Before finalizing

9 the report under this paragraph, the inde10 pendent entity shall—

11 (I) issue a draft report;

12 (II) submit to the Administrator

13 a copy of the draft report;

14 (III) issue a public notice re15 questing comments on the draft re16 port that requires all such comments

17 to be filed not later than 45 days

18 after issuance of the public notice;

19 and

20 (IV) during that 45-day public

21 comment period, conduct at least 1

22 public hearing in Lead, South Dakota,

23 to receive comments on the draft re24 port.
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1 (ii) FINAL REPORT.—In the final re2 port submitted to the Administrator under

3 this paragraph, the independent entity

4 shall respond to, and incorporate necessary

5 changes suggested by, the comments re6 ceived on the draft report.

7 (4) REVIEW AND APPROVAL BY ADMINIS8 TRATOR.—

9 (A) IN GENERAL.—Not later than 60 days

10 after receiving the final report under paragraph

11 (3), the Administrator shall—

12 (i) review the report; and

13 (ii) notify the State in writing of ac14 ceptance or rejection of the final report.

15 (B) CONDITIONS FOR REJECTION.—The

16 Administrator may reject the final report only

17 if the Administrator identifies 1 or more condi18 tions of the Mine that—

19 (i) pose a substantial risk to human

20 health or the environment, as determined

21 by the Administrator; and

22 (ii) require response action to correct

23 each condition causing the substantial risk

24 to human health or the environment identi25 fied in clause (i) before conveyance and as-
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1 sumption by the Federal Government of li2 ability concerning the Mine under this Act.

3 (C) REMEDIAL MEASURES AND CERTIFI4 CATION.—

5 (i) REMEDIATION.—

6 (I) IN GENERAL.—If the Admin7 istrator rejects the final report,

8 Homestake may carry out, or permit

9 the State to carry out, such measures

10 as are necessary to remove or reme11 diate any condition identified by the

12 Administrator under subparagraph

13 (B)(i) as posing a substantial risk to

14 human health or the environment.

15 (II) LONG-TERM REMEDI16 ATION.—

17 (aa) IN GENERAL.—In a

18 case in which the Administrator

19 determines that a condition iden20 tified by the Administrator under

21 subparagraph (B)(i) requires

22 continuing remediation, or reme23 diation that can only be com24 pleted as part of the final closure

25 of the Mine, it shall be a condi-
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1 tion of conveyance that

2 Homestake or the National

3 Science Foundation shall deposit

4 into the Fund such funds as are

5 necessary to pay the costs of that

6 remediation.

7 (bb) SOURCE OF FUNDS.—

8 Any funds deposited by the Na9 tional Science Foundation under

10 this paragraph shall be made

11 available from grant funding pro12 vided for the construction of the

13 Laboratory.

14 (ii) CERTIFICATION.—After the reme15 dial measures described in clause (i)(I) are

16 carried out and funds are deposited under

17 clause (i)(II), the independent entity may

18 certify to the Administrator that the condi19 tions for rejection identified by the Admin20 istrator under subparagraph (B) have been

21 corrected.

22 (iii) ACCEPTANCE OR REJECTION OF

23 CERTIFICATION.—Not later than 60 days

24 after an independent entity makes a cer25 tification under clause (ii), the Adminis-
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1 trator shall accept or reject the certifi2 cation.

3 SEC. 5. LIABILITY.

4 (a) ASSUMPTION OF LIABILITY.—Notwithstanding

5 any other provision of law, on completion of the convey6 ance in accordance with this Act, the United States shall

7 assume any and all liability relating to the Mine and lab8 oratory, including liability for—

9 (1) damages;

10 (2) reclamation;

11 (3) the costs of response to any hazardous sub12 stance (as defined in section 101 of the Comprehen13 sive Environmental Response, Compensation, and

14 Liability Act of 1980 (42 U.S.C. 9601)), contami15 nant, or other material on, under, or relating to the

16 Mine and laboratory; and

17 (4) closure of the Mine and laboratory.

18 (b) LIABILITY PROTECTION.—On completion of the

19 conveyance, neither Homestake nor the State shall be—

20 (1) liable to any person or the United States for

21 injuries, costs, injunctive relief, reclamation, dam22 ages (including damages to natural resources or the

23 environment), or expenses, or liable under any other

24 claim (including claims for indemnification or con25 tribution, claims by third parties for death, personal
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1 injury, illness, or loss of or damage to property, or

2 claims for economic loss), under any law (including

3 a regulation) for any claim arising out of or in con4 nection with contamination, pollution, or other con5 dition, use, or closure of the Mine and laboratory,

6 regardless of when a condition giving rise to the li7 ability originated or was discovered; or

8 (2) subject to any claim brought by or on behalf

9 of the United States under section 3730 of title 31,

10 United States Code, relating to negligence on the

11 part of Homestake in carrying out activities for the

12 conveyance of, and in conveying, the Mine.

13 (c) INDEMNIFICATION.—Notwithstanding any other

14 provision of law, on completion of the conveyance in ac15 cordance with this Act, the United States shall indemnify,

16 defend, and hold harmless Homestake and the State from

17 and against any and all liabilities and claims described in

18 subsections (a) and (b).

19 (d) WAIVER OF SOVEREIGN IMMUNITY.—For the

20 purposes of this Act, the United States waives any claim

21 to sovereign immunity.

22 (e) TIMING FOR ASSUMPTION OF LIABILITY.—If the

23 conveyance is effectuated by more than 1 legal trans24 action, the assumption of liability, liability protection, in25 demnification, and waiver of sovereign immunity provided
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1 for under this section shall apply to each legal transaction,

2 as of the date on which the transaction is completed and

3 with respect to such portion of the Mine as is conveyed

4 under that transaction.

5 (f) EXCEPTIONS FOR HOMESTAKE CLAIMS.—Noth6 ing in this section constitutes an assumption of liability

7 by the United States, or relief of liability of Homestake,

8 for—

9 (1) any unemployment, worker’s compensation,

10 or other employment-related claim of an employee of

11 Homestake that arose before the date of conveyance;

12 (2) any claim or cause of action, other than an

13 environmental claim or a claim concerning natural

14 resources, that arose before the date of conveyance;

15 (3) any violation of any provision of criminal

16 law; or

17 (4) any claim, injury, damage, liability, or rec18 lamation or cleanup obligation with respect to any

19 property or asset that is not conveyed under this

20 Act, except to the extent that any such claim, injury,

21 damage, liability, or reclamation or cleanup obliga22 tion arises out of the continued existence or use of

23 the Mine subsequent to the date of conveyance.

24 SEC. 6. INSURANCE COVERAGE.

25 (a) PROPERTY AND LIABILITY INSURANCE.—
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1 (1) IN GENERAL.—To the maximum extent

2 practicable, subject to the requirements described in

3 paragraph (2), the State shall purchase property

4 and liability insurance for the Mine and the oper5 ation of the laboratory to provide coverage against

6 the liability described in subsections (a) and (b) of

7 section 5.

8 (2) REQUIREMENTS.—The requirements re9 ferred to in paragraph (1) are the following:

10 (A) TERMS OF INSURANCE.—In deter11 mining the type, extent of coverage, and policy

12 limits of insurance purchased under this sub13 section, the State shall—

14 (i) periodically consult with the Ad15 ministrator and the Director of the Na16 tional Science Foundation; and

17 (ii) consider certain factors,

18 including—

19 (I) the nature of the projects and

20 experiments being conducted in the

21 laboratory;

22 (II) the availability of commercial

23 insurance; and
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1 (III) the amount of funding

2 available to purchase commercial in3 surance.

4 (B) ADDITIONAL TERMS.—The insurance

5 purchased by the State under this subsection

6 may provide coverage that is—

7 (i) secondary to the insurance pur8 chased by project sponsors; and

9 (ii) in excess of amounts available in

10 the Fund to pay any claim.

11 (3) FINANCING OF INSURANCE PURCHASE.—

12 (A) IN GENERAL.—Subject to section 7,

13 the State may finance the purchase of insur14 ance required under this subsection by using—

15 (i) funds made available from the

16 Fund; and

17 (ii) such other funds as are received

18 by the State for the purchase of insurance

19 for the Mine and laboratory.

20 (B) NO REQUIREMENT TO USE STATE

21 FUNDS.—Nothing in this Act requires the State

22 to use State funds to purchase insurance re23 quired under this subsection.

24 (4) ADDITIONAL INSURED.—Any insurance pur25 chased by the State under this subsection shall—
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1 (A) name the United States as an addi2 tional insured; or

3 (B) otherwise provide that the United

4 States is a beneficiary of the insurance policy

5 having the primary right to enforce all rights of

6 the United States under the policy.

7 (5) TERMINATION OF OBLIGATION TO PUR8 CHASE INSURANCE.—The obligation of the State to

9 purchase insurance under this subsection shall ter10 minate on the date on which—

11 (A) the Mine ceases to be used as a labora12 tory; or

13 (B) sufficient funding ceases to be avail14 able for the operation and maintenance of the

15 Mine or laboratory.

16 (b) PROJECT INSURANCE.—

17 (1) IN GENERAL.—The State, in consultation

18 with the Administrator and the Director of the Na19 tional Science Foundation, may require, as a condi20 tion of approval of a project for the laboratory, that

21 a project sponsor provide property and liability in22 surance or other applicable coverage for potential li23 ability associated with the project described in sub24 sections (a) and (b) of section 5.
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1 (2) ADDITIONAL INSURED.—Any insurance ob2 tained by the project sponsor under this section

3 shall—

4 (A) name the State and the United States

5 as additional insureds; or

6 (B) otherwise provide that the State and

7 the United States are beneficiaries of the insur8 ance policy having the primary right to enforce

9 all rights under the policy.

10 (c) STATE INSURANCE.—

11 (1) IN GENERAL.—To the extent required by

12 State law, the State shall purchase, with respect to

13 the operation of the Mine and the laboratory—

14 (A) unemployment compensation insur15 ance; and

16 (B) worker’s compensation insurance.

17 (2) PROHIBITION ON USE OF FUNDS FROM

18 FUND.—A State shall not use funds from the Fund

19 to carry out paragraph (1).

20 SEC. 7. ENVIRONMENT AND PROJECT TRUST FUND.

21 (a) ESTABLISHMENT.—On completion of the convey22 ance, the State shall establish, in an interest-bearing ac23 count at an accredited financial institution located within

24 the State, an Environment and Project Trust Fund.

25 (b) AMOUNTS.—The Fund shall consist of—
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1 (1) an annual deposit from the operation and

2 maintenance funding provided for the laboratory in

3 an amount to be determined—

4 (A) by the State, in consultation with the

5 Director of the National Science Foundation

6 and the Administrator; and

7 (B) after taking into consideration—

8 (i) the nature of the projects and ex9 periments being conducted at the labora10 tory;

11 (ii) available amounts in the Fund;

12 (iii) any pending costs or claims that

13 may be required to be paid out of the

14 Fund; and

15 (iv) the amount of funding required

16 for future actions associated with the clo17 sure of the facility;

18 (2) an amount determined by the State, in con19 sultation with the Director of the National Science

20 Foundation and the Administrator, and to be paid

21 by the appropriate project sponsor, for each project

22 to be conducted, which amount—

23 (A) shall be used to pay—
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1 (i) costs incurred in removing from

2 the Mine or laboratory equipment or other

3 materials related to the project;

4 (ii) claims arising out of or in connec5 tion with the project; and

6 (iii) if any portion of the amount re7 mains after paying the expenses described

8 in clauses (i) and (ii), other costs described

9 in subsection (c); and

10 (B) may, at the discretion of the State, be

11 assessed—

12 (i) annually; or

13 (ii) in a lump sum as a prerequisite to

14 the approval of the project;

15 (3) interest earned on amounts in the Fund,

16 which amount of interest shall be used only for a

17 purpose described in subsection (c); and

18 (4) all other funds received and designated by

19 the State for deposit in the Fund.

20 (c) EXPENDITURES FROM FUND.—Amounts in the

21 Fund shall be used only for the purposes of funding—

22 (1) waste and hazardous substance removal or

23 remediation, or other environmental cleanup at the

24 Mine;
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1 (2) removal of equipment and material no

2 longer used, or necessary for use, in conjunction

3 with a project conducted at the laboratory;

4 (3) a claim arising out of or in connection with

5 the conducting of such a project;

6 (4) purchases of insurance by the State as re7 quired under section 6;

8 (5) payments for and other costs relating to li9 ability described in section 5; and

10 (6) closure of the Mine and laboratory.

11 (d) FEDERAL PAYMENTS FROM FUND.—The United

12 States—

13 (1) to the extent the United States assumes li14 ability under section 5—

15 (A) shall be a beneficiary of the Fund; and

16 (B) may direct that amounts in the Fund

17 be applied to pay amounts and costs described

18 in this section; and

19 (2) may take action to enforce the right of the

20 United States to receive 1 or more payments from

21 the Fund.

22 (e) NO REQUIREMENT OF DEPOSIT OF PUBLIC

23 FUNDS.—Nothing in this section requires the State to de24 posit State funds as a condition of the assumption by the
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1 United States of liability, or the relief of the State or

2 Homestake from liability, under section 5.

3 SEC. 8. REQUIREMENTS FOR OPERATION OF LABORATORY.

4 After the conveyance, nothing in this Act exempts the

5 laboratory from compliance with any law (including a Fed6 eral environmental law).

7 SEC. 9. CONTINGENCY.

8 This Act shall be effective contingent on the selection,

9 by the National Science Foundation, of the Mine as the

10 site for the laboratory.

11 SEC. 10. PAYMENT AND REIMBURSEMENT OF COSTS.

12 The United States may seek payment—

13 (1) from the Fund, under section 7(d), to pay

14 or reimburse the United States for amounts payable

15 or liabilities incurred under this Act; and

16 (2) from available insurance, to pay or reim17 burse the United States and the Fund for amounts

18 payable or liabilities incurred under this Act.

19 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

20 There are authorized to be appropriated such sums

21 as are necessary to carry out this Act.

Æ