42 U.S.C. § 10132 — Recommendation of candidate sites for

Page 7979 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10132 1 So in original. There is no cl. (ii). 2 So in original. Probably should be ‘‘subparagraph (D).’’ (Pub. L. 97–425, title I, § 111, Jan. 7, 1983, 96 Stat. 2207.) § 10132. Recommendation of candidate sites for site characterization (a) Guidelines Not later than 180 days after January 7, 1983, the Secretary, following consultation with the Council on Environmental Quality, the Adminis- trator of the Environmental Protection Agency, the Director of the United States Geological Survey, and interested Governors, and the con- currence of the Commission shall issue general guidelines for the recommendation of sites for repositories. Such guidelines shall specify de- tailed geologic considerations that shall be pri- mary criteria for the selection of sites in var- ious geologic media. Such guidelines shall speci- fy factors that qualify or disqualify any site from development as a repository, including fac- tors pertaining to the location of valuable nat- ural resources, hydrology, geophysics, seismic activity, and atomic energy defense activities, proximity to water supplies, proximity to popu- lations, the effect upon the rights of users of water, and proximity to components of the Na- tional Park System, the National Wildlife Ref- uge System, the National Wild and Scenic Riv- ers System, the National Wilderness Preserva- tion System, or National Forest Lands. Such guidelines shall take into consideration the proximity to sites where high-level radioactive waste and spent nuclear fuel is generated or temporarily stored and the transportation and safety factors involved in moving such waste to a repository. Such guidelines shall specify popu- lation factors that will disqualify any site from development as a repository if any surface facil- ity of such repository would be located (1) in a highly populated area; or (2) adjacent to an area 1 mile by 1 mile having a population of not less than 1,000 individuals. Such guidelines also shall require the Secretary to consider the cost and impact of transporting to the repository site the solidified high-level radioactive waste and spent fuel to be disposed of in the repository and the advantages of regional distribution in the siting of repositories. Such guidelines shall require the Secretary to consider the various geologic media in which sites for repositories may be lo- cated and, to the extent practicable, to rec- ommend sites in different geologic media. The Secretary shall use guidelines established under this subsection in considering candidate sites for recommendation under subsection (b). The Secretary may revise such guidelines from time to time, consistent with the provisions of this subsection. (b) Recommendation by Secretary to President (1)(A) Following the issuance of guidelines under subsection (a) and consultation with the Governors of affected States, the Secretary shall nominate at least 5 sites that he determines suitable for site characterization for selection of the first repository site. (B) Subsequent to such nomination, the Sec- retary shall recommend to the President 3 of the nominated sites not later than January 1, 1985 for characterization as candidate sites. (C) Such recommendations under subpara- graph (B) shall be consistent with the provisions of section 10225 of this title. (D) Each nomination of a site under this sub- section shall be accompanied by an environ- mental assessment, which shall include a de- tailed statement of the basis for such rec- ommendation and of the probable impacts of the site characterization activities planned for such site, and a discussion of alternative activities relating to site characterization that may be undertaken to avoid such impacts. Such envi- ronmental assessment shall include— (i) an evaluation by the Secretary as to whether such site is suitable for site charac- terization under the guidelines established under subsection (a); (ii) an evaluation by the Secretary as to whether such site is suitable for development as a repository under each such guideline that does not require site characterization as a pre- requisite for application of such guideline; (iii) an evaluation by the Secretary of the ef- fects of the site characterization activities at such site on the public health and safety and the environment; (iv) a reasonable comparative evaluation by the Secretary of such site with other sites and locations that have been considered; (v) a description of the decision process by which such site was recommended; and (vi) an assessment of the regional and local impacts of locating the proposed repository at such site. (E)(i) 1 The issuance of any environmental as- sessment under this paragraph shall be consid- ered to be a final agency action subject to judi- cial review in accordance with the provisions of chapter 7 of title 5 and section 10139 of this title. Such judicial review shall be limited to the suf- ficiency of such environmental assessment with respect to the items described in clauses (i) through (vi) of subparagraph (E).2 (F) Each environmental assessment prepared under this paragraph shall be made available to the public. (G) Before nominating a site, the Secretary shall notify the Governor and legislature of the State in which such site is located, or the gov- erning body of the affected Indian tribe where such site is located, as the case may be, of such nomination and the basis for such nomination. (2) Before nominating any site the Secretary shall hold public hearings in the vicinity of such site to inform the residents of the area in which such site is located of the proposed nomination of such site and to receive their comments. At such hearings, the Secretary shall also solicit and receive any recommendations of such resi- dents with respect to issues that should be ad- dressed in the environmental assessment de- scribed in paragraph (1) and the site character- ization plan described in section 10133(b)(1) of this title. (3) In evaluating the sites nominated under this section prior to any decision to recommend a site as a candidate site, the Secretary shall use available geophysical, geologic, geochemical Page 7980 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10132 and hydrologic, and other information and shall not conduct any preliminary borings or exca- vations at a site unless (i) such preliminary bor- ing or excavation activities were in progress on January 7, 1983, or (ii) the Secretary certifies that such available information from other sources, in the absence of preliminary borings or excavations, will not be adequate to satisfy ap- plicable requirements of this chapter or any other law: Provided, That preliminary borings or excavations under this section shall not exceed a diameter of 6 inches. (c) Presidential review of recommended can- didate sites (1) The President shall review each candidate site recommendation made by the Secretary under subsection (b). Not later than 60 days after the submission by the Secretary of a rec- ommendation of a candidate site, the President, in his discretion, may either approve or dis- approve such candidate site, and shall transmit any such decision to the Secretary and to either the Governor and legislature of the State in which such candidate site is located, or the gov- erning body of the affected Indian tribe where such candidate site is located, as the case may be. If, during such 60-day period, the President fails to approve or disapprove such candidate site, or fails to invoke his authority under para- graph (2) to delay his decision, such candidate site shall be considered to be approved, and the Secretary shall notify such Governor and legis- lature, or governing body of the affected Indian tribe, of the approval of such candidate site by reason of the inaction of the President. (2) The President may delay for not more than 6 months his decision under paragraph (1) to ap- prove or disapprove a candidate site, upon deter- mining that the information provided with the recommendation of the Secretary is insufficient to permit a decision within the 60-day period re- ferred to in paragraph (1). The President may in- voke his authority under this paragraph by sub- mitting written notice to the Congress, within such 60-day period, of his intent to invoke such authority. If the President invokes such author- ity, but fails to approve or disapprove the can- didate site involved by the end of such 6-month period, such candidate site shall be considered to be approved, and the Secretary shall notify such Governor and legislature, or governing body of the affected Indian tribe, of the approval of such candidate site by reason of the inaction of the President. (d) Preliminary activities Except as otherwise provided in this section, each activity of the President or the Secretary under this section shall be considered to be a preliminary decisionmaking activity. No such activity shall require the preparation of an envi- ronmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or to require any environmental review under subparagraph (E) or (F) of section 102(2) of such Act. (Pub. L. 97–425, title I, § 112, Jan. 7, 1983, 96 Stat. 2208; Pub. L. 100–202, § 101(d) [title III, § 300], Dec. 22, 1987, 101 Stat. 1329–104, 1329–121; Pub. L. 100–203, title V, § 5011(b)–(d), Dec. 22, 1987, 101 Stat. 1330–228; Pub. L. 102–154, title I, Nov. 13, 1991, 105 Stat. 1000.) Editorial Notes AMENDMENTS 1987—Subsec. (b)(1)(C) to (H). Pub. L. 100–202 and Pub. L. 100–203, § 5011(b), amended par. (1) identically, redes- ignating subpars. (D) to (H) as (C) to (G), respectively, in subpar. (C) substituting ‘‘subparagraph (B)’’ for ‘‘subparagraphs (B) and (C)’’, and striking out former subpar. (C) which read as follows: ‘‘Not later than July 1, 1989, the Secretary shall nominate 5 sites, which shall include at least 3 additional sites not nominated under subparagraph (A), and recommend by such date to the President from such 5 nominated sites 3 can- didate sites the Secretary determines suitable for site characterization for selection of the second repository. The Secretary may not nominate any site previously nominated under subparagraph (A), that was not rec- ommended as a candidate site under subparagraph (B).’’ Subsec. (d). Pub. L. 100–202 and Pub. L. 100–203, § 5011(c), amended section identically, redesignating subsec. (e) as (d) and striking out former subsec (d) which read as follows: ‘‘After the required rec- ommendation of candidate sites under subsection (b) of this section, the Secretary may continue, as he deter- mines necessary, to identify and study other sites to determine their suitability for recommendation for site characterization, in accordance with the procedures de- scribed in this section.’’ Subsec. (e). Pub. L. 100–202 and Pub. L. 100–203, § 5011(d), which contained identical amendments direct- ing that subsec. (f) be struck out and all subsequent subsections be redesignated accordingly, was executed by striking out subsec. (e) as the probable intent of Congress because of the redesignation of former subsec. (f) as (e) by Pub. L. 100–202 and Pub. L. 100–203, § 5011(c), and the absence of any subsections subsequent to former subsec. (f). Subsec. (e) read as follows: ‘‘Nothing in this section may be construed as prohibiting the Secretary from continuing ongoing or presently planned site characterization at any site on Depart- ment of Energy land for which the location of the prin- cipal borehole has been approved by the Secretary by August 1, 1982, except that (1) the environmental as- sessment described in subsection (b)(1) of this section shall be prepared and made available to the public be- fore proceeding to sink shafts at any such site; and (2) the Secretary shall not continue site characterization at any such site unless such site is among the can- didate sites recommended by the Secretary under the first sentence of subsection (b) of this section for site characterization and approved by the President under subsection (c) of this section; and (3) the Secretary shall conduct public hearings under section 10133(b)(2) of this title and comply with requirements under sec- tion 10137 of this title within one year of January 7, 1983.’’ Pub. L. 100–202 and Pub. L. 100–203, § 5011(c), amended section identically, redesignating subsec. (f) as (e). Former subsec. (e) redesignated (d). Subsec. (f). Pub. L. 100–202 and Pub. L. 100–203, § 5011(c), amended section identically, redesignating subsec. (f) as (e). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States Geological Survey’’ substituted for ‘‘Geological Survey’’ in subsec. (a) pursuant to provi- sion of title I of Pub. L. 102–154, set out as a note under section 31 of Title 43, Public Lands. Executive Documents DELEGATION OF NOTIFICATION FUNCTION Letter of the President of the United States, dated May 28, 1986, 51 F.R. 19531, provided: Page 7981 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10133 1 See References in Text note below. 2 So in original. Probably should read ‘‘Congress and the’’. Letter to the Honorable John S. Herrington, Sec- retary of Energy Dear Mr. Secretary: You are hereby authorized to perform the notifica- tion function vested in the President pursuant to Sec- tion 112(c)(1) of the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10132(c)(1). This document shall be published in the Federal Reg- ister. Sincerely, RONALD REAGAN. § 10133. Site characterization (a) In general The Secretary shall carry out, in accordance with the provisions of this section, appropriate site characterization activities at the Yucca Mountain site. The Secretary shall consider fully the comments received under subsection (b)(2) and section 10132(b)(2) of this title and shall, to the maximum extent practicable and in consultation with the Governor of the State of Nevada, conduct site characterization activities in a manner that minimizes any significant ad- verse environmental impacts identified in such comments or in the environmental assessment submitted under subsection (b)(1).1 (b) Commission and States (1) Before proceeding to sink shafts at the Yucca Mountain site, the Secretary shall submit for such candidate site to the Commission and to the Governor or legislature of the State of Nevada, for their review and comment— (A) a general plan for site characterization activities to be conducted at such candidate site, which plan shall include— (i) a description of such candidate site; (ii) a description of such site characteriza- tion activities, including the following: the extent of planned excavations, plans for any onsite testing with radioactive or nonradio- active material, plans for any investigation activities that may affect the capability of such candidate site to isolate high-level ra- dioactive waste and spent nuclear fuel, and plans to control any adverse, safety-related impacts from such site characterization ac- tivities; (iii) plans for the decontamination and de- commissioning of such candidate site, and for the mitigation of any significant adverse environmental impacts caused by site char- acterization activities if it is determined un- suitable for application for a construction authorization for a repository; (iv) criteria to be used to determine the suitability of such candidate site for the lo- cation of a repository, developed pursuant to section 10132(a) of this title; and (v) any other information required by the Commission; (B) a description of the possible form or packaging for the high-level radioactive waste and spent nuclear fuel to be emplaced in such repository, a description, to the extent prac- ticable, of the relationship between such waste form or packaging and the geologic medium of such site, and a description of the activities being conducted by the Secretary with respect to such possible waste form or packaging or such relationship; and (C) a conceptual repository design that takes into account likely site-specific require- ments. (2) Before proceeding to sink shafts at the Yucca Mountain site, the Secretary shall (A) make available to the public the site character- ization plan described in paragraph (1); and (B) hold public hearings in the vicinity of such can- didate site to inform the residents of the area in which such candidate site is located of such plan, and to receive their comments. (3) During the conduct of site characterization activities at the Yucca Mountain site, the Sec- retary shall report not less than once every 6 months to the Commission and to the Governor and legislature of the State of Nevada, on the nature and extent of such activities and the in- formation developed from such activities. (c) Restrictions (1) The Secretary may conduct at the Yucca Mountain site only such site characterization activities as the Secretary considers necessary to provide the data required for evaluation of the suitability of such site for an application to be submitted to the Commission for a construc- tion authorization for a repository at such site, and for compliance with the National Environ- mental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (2) In conducting site characterization activi- ties— (A) the Secretary may not use any radio- active material at a site unless the Commis- sion concurs that such use is necessary to pro- vide data for the preparation of the required environmental reports and an application for a construction authorization for a repository at such site; and (B) if any radioactive material is used at a site— (i) the Secretary shall use the minimum quantity necessary to determine the suit- ability of such site for a repository, but in no event more than the curie equivalent of 10 metric tons of spent nuclear fuel; and (ii) such radioactive material shall be fully retrievable. (3) If the Secretary at any time determines the Yucca Mountain site to be unsuitable for devel- opment as a repository, the Secretary shall— (A) terminate all site characterization ac- tivities at such site; (B) notify the Congress, the 2 Governor and legislature of Nevada of such termination and the reasons for such termination; (C) remove any high-level radioactive waste, spent nuclear fuel, or other radioactive mate- rials at or in such site as promptly as prac- ticable; (D) take reasonable and necessary steps to reclaim the site and to mitigate any signifi- cant adverse environmental impacts caused by site characterization activities at such site; (E) suspend all future benefits payments under part F with respect to such site; and