II

104TH CONGRESS

2D SESSION S. 1614

To provide for the stabilization, enhancement, restoration, and management

of the Coeur d’Alene River basin watershed, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 14 (legislative day, MARCH 13), 1996

Mr. CRAIG (for himself and Mr. KEMPTHORNE) introduced the following bill;

which was read twice and referred to the Committee on Environment and

Public Works

A BILL

To provide for the stabilization, enhancement, restoration,

and management of the Coeur d’Alene River basin watershed, 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 ‘‘Coeur d’Alene River

5 Basin Environmental Restoration Act of 1996’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—

8 (1) to provide for the stabilization, enhance9 ment, restoration, and management of the Coeur
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1 d’Alene River basin to the extent necessary to repair

2 and mitigate environmental damage caused by past

3 mining development;

4 (2) to reduce unacceptable risks to human

5 health in the Coeur d’Alene River basin;

6 (3) to develop and implement a comprehensive

7 watershed management and enhancement plan for

8 the Coeur d’Alene River basin; and

9 (4) to authorize the funds necessary to imple10 ment the plan and this Act.

11 SEC. 3. DEFINITIONS.

12 In this Act:

13 (1) ACTION PLAN.—The term ‘‘action plan’’

14 means the plan for the stabilization, enhancement,

15 restoration, and management of the Coeur d’Alene

16 River basin prepared under section 5(a).

17 (2) BUNKER HILL SUPERFUND SITE.—The

18 term ‘‘Bunker Hill Superfund Site’’ means the 21-

19 square mile facility known by that name that is list20 ed on the National Priorities List established under

21 section 105(a)(8)(B) of the Comprehensive Environ22 mental Response, Compensation, and Liability Act

23 of 1980 (42 U.S.C. 9605(a)(8)(B)) as of the date of

24 enactment of this Act.
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1 (3) COEUR D’ALENE RIVER BASIN.—The term

2 ‘‘Coeur d’Alene River basin’’ means the watersheds

3 in northern Idaho, including the Bunker Hill

4 Superfund Site, that contain—

5 (A) the South Fork of the Coeur d’Alene

6 River and tributaries of the fork;

7 (B) Beaver and Prichard Creeks, which

8 are tributaries of the North Fork of the Coeur

9 d’Alene River;

10 (C) the main stream of the Coeur d’Alene

11 River below the South Fork, including the lat12 eral lakes;

13 (D) Lake Coeur d’Alene; and

14 (E) any area downstream of Lake Coeur

15 d’Alene that is allegedly affected by mining-re16 lated activities in the areas described in sub17 paragraphs (A) through (D).

18 (4) COMMISSION.—The term ‘‘Commission’’

19 means the Coeur d’Alene River Basin Commission

20 established by section 6.

21 (5) FUND.—The term ‘‘Fund’’ means the

22 Coeur d’Alene Trust Fund established by section 4.

23 (6) GOVERNOR.—The term ‘‘Governor’’ means

24 the Governor of the State of Idaho.

25 (7) PERSON.—The term ‘‘person’’ means—
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1 (A) an individual, firm, corporation, asso2 ciation, partnership, consortium, joint venture,

3 and commercial entity;

4 (B) the Federal Government; and

5 (C) a State, municipality, commission, po6 litical subdivision of a State, Indian tribe, and

7 interstate body.

8 (8) PRIVATE PERSON.—The term ‘‘private per9 son’’ means a person other than the Federal Govern10 ment or a State, municipality, commission, political

11 subdivision of a State, Indian tribe, or interstate

12 body.

13 (9) SECRETARY.—The term ‘‘Secretary’’ means

14 the Secretary of the Army.

15 SEC. 4. COEUR D’ALENE TRUST FUND.

16 (a) ESTABLISHMENT.—There is established in the

17 Treasury of the United States a trust fund to be known

18 as the ‘‘Coeur d’Alene Trust Fund’’, consisting of—

19 (1) such amounts as are appropriated to the

20 Fund under section 9;

21 (2) amounts contributed by a private person

22 under section 7(b);

23 (3) amounts contributed by any other person or

24 trust; and
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1 (4) any interest earned on investment of

2 amounts in the Fund under subsection (c).

3 (b) EXPENDITURES FROM FUND.—

4 (1) IN GENERAL.—Subject to paragraph (2),

5 upon request by the Secretary, the Secretary of the

6 Treasury shall transfer from the Fund to the Sec7 retary such amounts as are required pursuant to

8 paragraph (2) and section 5 to carry out this Act.

9 (2) ADMINISTRATIVE EXPENSES.—An amount

10 not exceeding 10 percent of the amounts in the

11 Fund shall be available in each fiscal year to pay the

12 administrative expenses necessary to carry out this

13 Act.

14 (c) INVESTMENT OF FUNDS.—

15 (1) IN GENERAL.—The Secretary of the Treas16 ury shall invest such portion of the Fund as is not,

17 in the judgment of the Secretary of the Treasury,

18 required to meet current withdrawals. Investments

19 may be made only in interest-bearing obligations of

20 the United States.

21 (2) ACQUISITION OF OBLIGATIONS.—For the

22 purpose of investments under paragraph (1), obliga23 tions may be acquired—

24 (A) on original issue at the issue price; or
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1 (B) by purchase of outstanding obligations

2 at the market price.

3 (3) SALE OF OBLIGATIONS.—Any obligation ac4 quired by the Fund may be sold by the Secretary of

5 the Treasury at the market price.

6 (4) CREDITS TO FUND.—The interest on, and

7 the proceeds from the sale or redemption of, any ob8 ligations held in the Fund shall be credited to and

9 form a part of the Fund.

10 (d) TRANSFERS OF AMOUNTS.—

11 (1) IN GENERAL.—The amounts required to be

12 transferred to the Fund under this section shall be

13 transferred at least monthly from the general fund

14 of the Treasury to the Fund on the basis of esti15 mates made by the Secretary of the Treasury.

16 (2) ADJUSTMENTS.—Proper adjustment shall

17 be made in amounts subsequently transferred to the

18 extent prior estimates were in excess of or less than

19 the amounts required to be transferred.

20 (e) FINANCIAL STATEMENTS.—In conformance with

21 generally accepted accounting principles, the Secretary

22 shall prepare annual financial statements concerning ex23 penditures from the Fund. The financial statements shall

24 be audited annually by the Comptroller General.
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1 SEC. 5. ACTION PLAN.

2 (a) DEVELOPMENT.—

3 (1) IN GENERAL.—At the request of the Gov4 ernor, the Secretary shall request from the Secretary

5 of the Treasury and provide to the State of Idaho

6 amounts from the Fund, up to a maximum of

7 $500,000, for the Governor to use, in conjunction

8 with the Coeur d’Alene River Basin Commission, to

9 develop an action plan to support and enhance natu10 ral recovery of the Coeur d’Alene River basin

11 through cost-effective measures, which may vary

12 from location to location, in the Coeur d’Alene River

13 basin.

14 (b) PRACTICES.—The action plan shall embody prac15 tices designed to achieve—

16 (1) reductions of discharges of historic mine

17 drainage, to the extent appropriate and feasible;

18 (2) isolation, capping, or removal of mine

19 tailings, to the extent appropriate and feasible;

20 (3) improvement of habitat by adding plantings

21 and reducing exposures of certain fish and wildlife

22 to heavy metals;

23 (4) stabilization of river banks and rights of

24 way; and

25 (5) any other appropriate available restoration

26 options that are consistent with this Act.
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1 (c) CONTENTS.—The action plan shall—

2 (1) identify priority programs, activities, and

3 projects for addressing mining waste and discharges

4 and other point and nonpoint sources of elevated

5 concentrations of metals created prior to the date of

6 enactment of this Act;

7 (2) describe the methods for funding and sched8 ules for the programs, activities, and projects, in9 cluding the use of Federal and other sources of

10 funds;

11 (3) include a strategy for environmental im12 provement of the Coeur d’Alene River basin, includ13 ing the promotion of prevention and management

14 practices to reduce the quantity of nutrient loading

15 in the Coeur d’Alene River basin;

16 (4) characterize and assess relevant data on en17 vironmental problems of the Coeur d’Alene River

18 basin, including assessment of trends in water qual19 ity, natural resources, and use of Coeur d’Alene

20 River basin resources;

21 (5) to the extent practicable, use and incor22 porate—

23 (A) available Federal and tribal studies

24 and data; and
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1 (B) plans prepared, and priorities estab2 lished by, the State of Idaho or private parties,

3 including the Coeur d’Alene River Basin Res4 toration Project Citizens’ Advisory Committee,

5 for the stabilization, enhancement, and restoration

6 of the Coeur d’Alene River basin; and

7 (6) include procedures for public comment on

8 the contents and implementation of the action plan.

9 (d) IMPLEMENTATION.—

10 (1) SUBMISSION OF ACTION PLAN.—The Gov11 ernor shall submit a completed action plan to the

12 Secretary by June 1, 1997.

13 (2) PAYMENT OF BALANCE OF FUND.—Imme14 diately on submission of the action plan by the Gov15 ernor, the Secretary shall provide the remaining

16 amounts in the Fund to the State of Idaho, to be

17 held in trust to fund the implementation of the ac18 tion plan by the Governor, in conjunction with the

19 Commission.

20 (3) EXTENSION OF DEADLINE.—On written no21 tice by the Governor to the Secretary, the deadline

22 for submission of the action plan shall be extended

23 for up to 24 months.

24 (e) POWERS OF SECRETARY.—As necessary in carry25 ing out this Act and without regard to Federal laws gov-
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1 erning reduction of paperwork, acquisition of property and

2 administrative services, or public buildings, the Secretary

3 may use amounts in the Fund to—

4 (1) enter into contracts, agreements, and other

5 arrangements, including financial arrangements for

6 professional services, supplies, construction, mainte7 nance, management, and operation of equipment;

8 (2) purchase, lease, and otherwise dispose of

9 real and personal property; and

10 (3) carry out such other activities, including the

11 hiring of staff, as are necessary to develop and im12 plement the action plan.

13 (f) GIFTS.—As necessary in carrying out this Act, the

14 Secretary may accept, use, and dispose of gifts or dona15 tions of services and property.

16 SEC. 6. COEUR D’ALENE RIVER BASIN COMMISSION.

17 (a) ESTABLISHMENT.—There is established a com18 mission to be known as the ‘‘Coeur d’Alene River Basin

19 Commission’’ to work in conjunction with the Governor

20 in the development and implementation of the action plan.

21 Except as provided in subsection (b), the members of the

22 Commission shall be appointed by the Governor.

23 (b) MEMBERSHIP.—The Commission shall consist

24 of—
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1 (1) 1 representative of the Idaho Department of

2 Environmental Quality;

3 (2) 1 representative of the Idaho Department of

4 Fish and Game;

5 (3) 1 representative of the Environmental Pro6 tection Agency, to be appointed by the Adminis7 trator of the Environmental Protection Agency;

8 (4) 1 representative of the Department of the

9 Interior and the Department of Agriculture, to be

10 appointed jointly by the Secretary of the Interior

11 and the Secretary of Agriculture;

12 (5) 1 representative of each of the county gov13 ernments of Benewah County, Kootenai County, and

14 Shoshone County, Idaho;

15 (6) 1 representative of the trustees established

16 under the settlement agreement of May 31, 1986,

17 entered in State of Idaho v. Bunker Hill Co., No.

18 83–3161 (D. Idaho);

19 (7) 1 representative of the Coeur d’Alene Tribe,

20 appointed by the Tribe;

21 (8) 2 representatives of the Coeur d’Alene River

22 Basin Restoration Project Citizens’ Advisory Com23 mittee;

24 (9) 1 representative of the mining industry; and
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1 (10) 1 representative of other affected indus2 tries.

3 (c) TERMS.—

4 (1) IN GENERAL.—The term of a member of

5 the Commission shall be 2 years.

6 (2) VACANCIES.—Any vacancy on the Commis7 sion shall be filled in the manner in which the ap8 pointment was made.

9 (d) INITIAL APPOINTMENTS.—The initial members of

10 the Commission shall be appointed not later than 90 days

11 after the date of enactment of this Act.

12 (e) CHAIRPERSON.—The members of the Commission

13 shall elect annually a chairperson from among the mem14 bers of the Commission.

15 (f) ADVISORY COMMITTEES.—In working in conjunc16 tion with the Governor in the development and implemen17 tation of the action plan, the Commission shall appoint,

18 and consult as appropriate—

19 (1) a technical advisory committee; and

20 (2) a citizens’ advisory committee.

21 (g) EMPLOYMENT STATUS.—

22 (1) IN GENERAL.—Except as provided in para23 graph (2), a member of the Commission shall not be

24 considered to be an officer or employee of the United

25 States for any purpose.
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1 (2) FEDERAL REPRESENTATIVES.—A member

2 of the Commission appointed under subsection (b)

3 (3) or (4) may be an officer or employee of the Unit4 ed States.

5 (h) PROCEDURES.—

6 (1) ADOPTION, AMENDMENT, AND REPEAL.—

7 The Commission shall adopt and, as appropriate,

8 amend or repeal by majority vote procedures govern9 ing the manner in which the business of the Com10 mission may be conducted.

11 (2) AVAILABILITY TO THE PUBLIC.—The Com12 mission shall make available to the public a state13 ment of the organization, practices, and procedures

14 of the Commission.

15 (3) PUBLIC HEARINGS.—All Commission meet16 ings shall be open to the public.

17 (i) FUNDING.—Funds made available under section

18 5 (a) and (d) shall be used to pay the necessary expenses

19 of the Commission.

20 SEC. 7. LIMITATIONS ON LIABILITY.

21 (a) PERSONS ENGAGED IN COEUR D’ALENE RIVER

22 BASIN ACTIVITIES.—

23 (1) IN GENERAL.—Except as provided in para24 graph (2), a person shall have no liability under the

25 Comprehensive Environmental Response, Compensa-
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1 tion, and Liability Act of 1980 (42 U.S.C. 9601 et

2 seq.), the Federal Water Pollution Control Act (33

3 U.S.C. 1251 et seq.), or the Solid Waste Disposal

4 Act (42 U.S.C. 6901 et seq.) for any response cost,

5 response or other cleanup or corrective action, obli6 gation, penalty, or natural resource damage, within

7 the Coeur d’Alene River basin attributable to any re8 lease or potential release of a hazardous substance

9 resulting from a mining-related or other activity in

10 the Coeur d’Alene River basin undertaken before the

11 date of enactment of this Act, except that—

12 (A) the liability and obligations of any per13 son for activity covered by the terms of a Fed14 eral or State permit shall continue to be deter15 mined in accordance with the terms of the per16 mit; and

17 (B) this paragraph shall not affect the

18 terms and obligations of the consent decrees en19 tered in United States v. Asarco Inc., Civil No.

20 94–0206–N–HLR, United States District

21 Court, District of Idaho.

22 (2) TERMINATION OF LIABILITY LIMITATION.—

23 (A) IN GENERAL.—Paragraph (1) shall

24 cease to apply with respect to a person if, on

25 the date that is 2 years after the date on which
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1 the Governor submits the action plan to the

2 Secretary, the person has not entered into an

3 enforceable agreement described in subpara4 graph (B).

5 (B) ENFORCEABLE AGREEMENT.—An en6 forceable agreement referred to in subpara7 graph (A) is an agreement entered into by the

8 State of Idaho and a person that requires the

9 person to contribute, over a period up to 10

10 years, the person’s fair share, which may in11 clude funds, land, interests in lands, goods and

12 services, in an amount or value determined by

13 the Governor, in conjunction with the Commis14 sion, after consideration of all relevant factors,

15 including—

16 (i) the past contributions and efforts

17 and existing commitments of the person to18 ward environmental improvement in the

19 Coeur d’Alene River basin;

20 (ii) the importance of maintaining the

21 viability of mining and the mining compa22 nies and other activities that have been ac23 tive and continue to be active in the Coeur

24 d’Alene River basin; and
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1 (iii) the estimated cost to implement

2 the action plan.

3 (C) LIABILITY OF PERSONS THAT ENTER

4 INTO AGREEMENTS.—

5 (i) NO ACTION AGAINST PERSON IN

6 COMPLIANCE.—A person that enters into

7 an enforceable agreement described in sub8 paragraph (B) shall not be subject to any

9 action or liability for cleanup under the

10 Comprehensive Environmental Response,

11 Compensation, and Liability Act of 1980

12 (42 U.S.C. 9601 et seq.), the Federal

13 Water Pollution Control Act (33 U.S.C.

14 1251 et seq.), and the Solid Waste Dis15 posal Act (42 U.S.C. 6901 et seq.) result16 ing from mining related or other activity in

17 the Coeur d’Alene River basin undertaken

18 before the date of enactment of this Act,

19 except as set forth in subsection (a)(1) (A)

20 and (B), if the person is in compliance

21 with the terms of the enforceable agree22 ment.

23 (ii) TOLLING OF PERIOD OF LIMITA24 TIONS.—The period of limitations applica25 ble to an action described in clause (i)
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1 shall be tolled during the term of any en2 forceable agreement.

3 (iii) RELEASE.—On completion of per4 formance of an enforceable agreement, the

5 person executing the agreement shall be

6 released from all liability under the Com7 prehensive Environmental Response, Com8 pensation, and Liability Act of 1980 (42

9 U.S.C. 9601 et seq.), the Federal Water

10 Pollution Control Act (33 U.S.C. 1251 et

11 seq.), and the Solid Waste Disposal Act

12 (42 U.S.C. 6901 et seq.).

13 (D) LIABILITY OF THE GOVERNOR, COM14 MISSION, AND STATE.—The Governor, the State

15 of Idaho, and the Commission shall not be lia16 ble under the Comprehensive Environmental

17 Response, Compensation, and Liability Act of

18 1980 (42 U.S.C. 9601 et seq.), the Federal

19 Water Pollution Control Act (33 U.S.C. 1251 et

20 seq.), the Solid Waste Disposal Act (42 U.S.C.

21 6901 et seq.), or any other Federal law for any

22 activities conducted in accordance with the ac23 tion plan.

24 (b) INNOCENT LANDOWNERS.—A person shall have

25 no liability under the Comprehensive Environmental Re-
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1 sponse, Compensation, and Liability Act of 1980 (42

2 U.S.C. 9601 et seq.), the Federal Water Pollution Control

3 Act (33 U.S.C. 1251 et seq.), or the Solid Waste Disposal

4 Act (42 U.S.C. 6901 et seq.) for any response cost, re5 sponse or other cleanup or corrective action, obligation,

6 penalty, or natural resource damages within the Coeur

7 d’Alene River basin attributable to any release or potential

8 release of a hazardous substance resulting from a mining9 related activity in the Coeur d’Alene River basin engaged

10 in on or before the date of enactment of this Act if the

11 person establishes by a preponderance of the evidence that

12 the release or potential release was caused solely by an

13 act or omission of a third party (other than the person

14 or an employee or agent of that person).

15 SEC. 8. COOPERATIVE AGREEMENTS.

16 (a) AUTHORITY.—The Secretary may enter into co17 operative agreements with the Governor and the Commis18 sion to carry out activities necessary to implement the ac19 tion plan.

20 (b) FUNDING OF COOPERATIVE AGREEMENTS.—The

21 Secretary shall obtain from the Fund such sums as are

22 necessary to carry out activities under cooperative agree23 ments entered into under subsection (a).
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1 SEC. 9. EFFECT ON TRIBAL AUTHORITY.

2 Nothing in this Act impairs, impedes, waives, preju3 dices, or in any way limits any civil or regulatory jurisdic4 tion or inherent sovereign authority of the Coeur d’Alene

5 Tribe over land, water, resources, or activities within the

6 Coeur d’Alene Indian Reservation, but the Coeur d’Alene

7 Tribe shall be bound by determinations that are made pur8 suant to and in accordance with this Act.

9 SEC. 10. FUNDING.

10 (a) AUTHORIZATION OF APPROPRIATIONS.—There

11 are authorized to be appropriated to the Fund such sums

12 as are necessary to carry out this Act.

13 (b) OTHER FUNDING.—The Secretary of the Inte14 rior, the Secretary of Agriculture, the Secretary of the

15 Army, and the Administrator of the Environmental Pro16 tection Agency may use research, development, dem17 onstration, and other appropriated funds, in a manner

18 consistent with the purposes for which the funds are ap19 propriated, to carry out activities that are part of, or con20 sistent with, the action plan.

Æ