H. R. 3116—63
(H) a general description of the rules of engagement
for such forces; and
(I) the foreign commander or commanders involved.
TITLE X
CONVEYANCE OF KAHO’OLAWE ISLAND, HAWAII, TO THE STATE OF
HAWAII
SEC. 10001. (a) PURPOSE.—It is timely and in the interest
of the United States to recognize and fulfill the commitments made
on behalf of the United States to the people of Hawaii and to
return to the State of Hawaii the Island of Kaho’olawe. Kaho’olawe
Island is among Hawaii’s historic lands and has a long, documented
history of cultural and natural significance to the people of Hawaii
reflected, in part, in the Island’s inclusion on the National Register
of Historic Places and in the longstanding interest in the return
of the Island to State sovereignty, public access and use. Congress
finds that control, disposition, use and management of Kaho’olawe
is affected with a Federal interest. It also is in the national interest
and an obligation undertaken by Congress and the United States
under this and other Acts, and in furtherance of the purposes
of Executive Order 10436 (1953), to recognize the cultural and
humanitarian value of assuring meaningful, safe use of the Island
for appropriate cultural, historical, archaeological and educational
purposes as determined by the State of Hawaii and to provide
for the clearance or removal of unexploded ordnance and for the
environmental restoration of the Island for such purposes. Congress
also finds it is in the national interest and an essential element
in the Federal Government’s relationship with the State of Hawaii
to ensure that the conveyance, clearance or removal of unexploded
ordnance, environmental restoration, control of access to the Island
and future use of the Island be undertaken in a manner consistent
with the enhancement of that relationship, the Department of
Defense’s military mission, the Federal interest and applicable
provisions of law.
(b) CONVEYANCE.—Subject to section 10001(e) of this Act, the
United States, through the Secretary of the Navy (also, hereinafter,
‘‘the Secretary’’), shall, notwithstanding section 120(h) of the Com-
prehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9620 (h)) convey and return, without consid-
eration and without conditions other than those set forth in or
required by this Act, to the State of Hawaii all right, title and
interest of the United States, except that interest set forth in
section 10001(d)(2) and section 10001(e) of this Act, in and to
that parcel of property consisting of approximately 28,776 acres
of land known as Kaho’olawe Island, Hawaii and its surrounding
waters. Such conveyance of title shall occur no later than one
hundred eighty days from the date of enactment of this Act and
the appropriation of funds for such purposes described in this
Act.
(c) DESCRIPTION OF PROPERTY.—The exact acreage and legal
description of the parcel of property to be conveyed under section
10001(b) shall be determined by a survey that is deemed satisfactory
by the State of Hawaii in consultation with the Secretary. The
cost of the survey shall be borne by the Secretary, making use
of funds provided pursuant to this Act.
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H. R. 3116—64
(d) IMPLEMENTATION.—(1) The Secretary shall carry out the
requirements of this Act following consultation with the State of
Hawaii as required by section 10002 of this Act and with the
technical and logistical support, as needed, of the United States
Army Corps of Engineers and other Federal agencies.
(2) Notwithstanding any other provision of this Act, the Sec-
retary shall retain the control of access to the Island, in consultation
with the State of Hawaii and prior to and following the entering
into force of the Memorandum of Understanding contained in sec-
tion 10002 of this Act, until either clearance and restoration are
completed or within no more than ten years after the date of
enactment of this Act, whichever comes first, and control of access
is transferred to the State of Hawaii, pursuant to such conditions.
(e) INDEMNIFICATION AND THE CONTROL OF ACCESS.—(1) The
Navy shall retain control of the access to the Island during the
time period set forth in section 10001(d)(2) of this Act that it
is undertaking unexploded ordnance removal and hazardous mate-
rials removal activities required in this Act.
(2) During the time period the United States retains control
of access to the Island, the United States shall hold harmless,
defend and indemnify the State of Hawaii or its political subdivi-
sions from and against all claims, demands, losses, damages, liens,
liabilities, injuries, deaths, penalties, fines, lawsuits and other
proceedings, judgments, awards and reasonable costs and expenses
arising out of, or in any manner predicated upon, the presence,
release or threatened release or any munitions, exploded or
unexploded ordnance, solid waste associated with such ordnance
or hazardous substance, pollutant or contaminant resulting from
the activities of the Department of Defense, including the activities
of the Department of the Navy and the Department of the Army
and any agent, employee, lessee, licensee, independent contractor
or other person on the property during such time that the property
was and remains under the control of the Department of Defense,
Navy, Army or other agencies of the United States Government.
Notwithstanding this subsection or any other provision of law,
response action contractors shall not be held harmless, defended
or indemnified for activities under this title and activities of
response action contractors are not included as activities of the
Department of Defense under this subsection.
The term ‘‘response action contractor’’ has the meaning given
such term in section 119(e)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9619(e)(2)), except that such term includes a person who enters
into, and is carrying out, a contract to provide at a facility (including
a facility not listed on the National Priorities List) a response
action with respect to any release or threatened release from the
facility of a hazardous substance or pollutant or contaminant, or
a similar action with respect to petroleum or its derivatives.
(3) Nothing in this Act is intended to alter or affect the Federal
or State requirements of law governing liability following the trans-
fer of control of access to the State of Hawaii, except that the
United States shall remain liable for and retain responsibility for
any environmental restoration, remediation, or corrective action
required at the property conveyed in paragraph (b).
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H. R. 3116—65
COOPERATION OF FEDERAL DEPARTMENTS AND THE STATE OF HAWAII
AND TRANSFER OF CONTROL OF ACCESS
SEC. 10002. (a)(1) Upon the request of the Secretary or the
State of Hawaii, and in accordance with existing laws and require-
ments, any department or agency of the Federal Government may
provide assistance to the Secretary or the State of Hawaii, as
the case may be, in carrying out their respective duties under
this Act.
(2) Within one hundred eighty days following passage of this
Act, and notwithstanding any other provision of law, the Secretary
shall consult with and enter into a Memorandum of Understanding
with the State of Hawaii governing the terms and conditions of
(i) access to the Island for those purposes set forth in sections
10001 and 10002 of this Act and any other cultural, archeological,
educational and planning purposes provided for in this title, giving
due regard to the risk of harm to public health and the environment
and safety involved in providing such access and the need to avoid
interference with or disruption of the Navy’s clearance, removal
and remediation activities; (ii) the timing, planning, methodology
and implementation of ordnance clearance or removal and hazard-
ous substance clearance and other waste removal and the protection
of historical, cultural and religious sites and artifacts: Provided,
That all reasonable effort should be made to avoid harm to such
sites and artifacts from the detonation of unexploded ordnance,
clearance or removal of ordnance, and hazardous substance clear-
ance; (iii) the establishment of a two-tiered standard of restoration
and ordnance clearance, removal, restoration and safety, taking
into account the purpose for which any geographic area will be
used and the nature and purpose of human access to such area,
but assuring the protection of human health and the environment;
(iv) the means for protecting historical, cultural and religious sites
and artifacts from intentional destruction, harm and vandalism;
(v) public participation, as appropriate, including the opportunity
for public comment and hearing; and (vi) the means for regular
interval clean-ups and removal of newly discovered previously unde-
tected ordnance by the Navy. Under any such terms and conditions,
the Secretary shall be assured full and necessary access to carry
out the obligations of the Secretary arising out of the responsibilities
and liabilities of this title. Such terms and conditions shall remain
in existence until the completion of the restoration and remediation
activities required by section 10002 of this Act and be revised
periodically by mutual consent and giving due regard to the impor-
tance of access to the Island as the level of clean-up, restoration
and remediation moves toward attainment. Nothing in this title
is intended to diminish or alter the rights and responsibilities
of the Navy to allow access to the Island that existed prior to
the enactment of this title.
(3) The United States, through the Secretary of the Navy,
shall transfer the control of access to the State of Hawaii within
no more than ten years from the date of enactment of this Act
or when the activities required by this Act, including ordnance
clearance or removal activities and environmental remediation
activities are completed, whichever comes first.
(4) Notwithstanding the duties and obligations set forth in
this title and notwithstanding the conveyance required under sec-
tion 10001, the State of Hawaii shall not be liable or responsible
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H. R. 3116—66
for the conduct of any clean-up and response actions arising from
and relating to the use, environmental clean-up and ordnance
removal and remediation of Kaho’olawe Island and its adjacent
waters.
KAHO’OLAWE ISLAND CONVEYANCE, REMEDIATION, AND
ENVIRONMENTAL RESTORATION TRUST FUND
SEC. 10003. (a) There is established on the books of the Treas-
ury of the United States a fund to be known as the ‘‘Kaho’olawe
Island Conveyance, Remediation, and Environmental Restoration
Fund’’ (hereinafter in this subsection referred to as the ‘‘Fund’’).
The Fund shall be administered by the Secretary of the Treasury.
The Fund shall be used for the accumulation of funds in order
to pay the obligations incurred by the Secretary of the Navy or
the Department of Defense in carrying out the purposes of this
Act and for properly allocable costs of the Federal Government
in the administration of the Fund.
(b) There shall be deposited into the Fund the following, which
shall constitute the assets of the Fund:
(1) Amounts paid into the Fund from any source.
(2) Any amount appropriated to the Fund.
(3) Any return on investment of the assets of the Fund.
(c) To the extent provided in appropriation Acts, the assets
of the Fund shall be available for obligation by the Secretary
of the Navy to carry out the purposes of this Act.
(d) There is authorized to be appropriated into the Fund
$400,000,000, which may be appropriated as a lump sum or in
annual increments. Of the amounts deposited into the Fund, not
less than 11 percent shall be made available to the State of Hawaii
to carry out the provisions of section 10002 of this Act.
(e) Amounts appropriated to the Fund shall remain available
until obligated or until the Fund is terminated.
(f) Upon payment of all incremental costs associated with the
purposes for which the Fund is established, the Fund shall be
terminated.
(g) Subject to the provisions of this section, the Secretary is
authorized to provide $45,000,000 to the State of Hawaii for the
purpose of long term planning and implementation by the State
of (i) such long term planning, (ii) environmental restoration activi-
ties, and (iii) the terms and conditions set forth in the Memorandum
of Understanding required by section 10002 of this Act, concerning
Kaho’olawe Island and its adjacent waters. Such funds as are
provided by the Secretary for the purpose of carrying out this
section shall be made available to the State by the Secretary from
funds made available pursuant to this Act and shall be provided
to the State of Hawaii.
(h) Funds in addition to those provided pursuant to section
10003(g) may be provided to the State of Hawaii upon the submis-
sion of an acceptable plan containing the elements identified in
10003(g) of this Act and demonstrating, to the satisfaction of the
Secretary, that such funds are necessary to the proper fulfillment
of such elements and the purposes of this Act. The Secretary shall
have sole discretion to award such additional funds, however, the
award of such funds shall not be unreasonably withheld.
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H. R. 3116—67
ANNUAL REPORT TO CONGRESS AND RELATED DISPUTE RESOLUTION
SEC. 10004. (a) The Secretary shall submit annually a report,
in detail, describing compliance with the provisions of this Act.
Such report shall include the comments of the State of Hawaii
and be submitted to the Defense Committees of Congress.
(b) Federal courts shall have jurisdiction to enforce the terms,
conditions and provisions of this Act, regarding the activities, duties,
and responsibilities of the United States, its departments, agencies,
and instrumentalities set forth in this Act and occurring on the
Island of Kaho’olawe and in its adjacent waters. In any judicial
review under this Act, the United States or the State, or both,
if not a party may intervene as a matter of right. The United
States, its departments, agencies and instrumentalities shall be
subject to only such injunctive relief as may be imposed by the
court to enforce compliance with the terms of this Act and the
Memorandum of Understanding. Such compliance shall be enforced
giving due regard to the need for expeditious clean-up under the
terms and conditions of this Act.
This Act may be cited as the ‘‘Department of Defense Appropria-
tions Act, 1994’’.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
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