42 U.S.C. § 10138 — Participation of Indian tribes

Page 7990 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10138 (10) for public notification of the procedures specified under the preceding paragraphs; and (11) for resolving objections of a State and affected Indian tribes at any stage of the plan- ning, siting, development, construction, oper- ation, or closure of such a facility within such State through negotiation, arbitration, or other appropriate mechanisms. (d) On-site representative The Secretary shall offer to any State, Indian tribe or unit of local government within whose jurisdiction a site for a repository or monitored retrievable storage facility is located under this subchapter an opportunity to designate a rep- resentative to conduct on-site oversight activi- ties at such site. Reasonable expenses of such representatives shall be paid out of the Waste Fund. (Pub. L. 97–425, title I, § 117, Jan. 7, 1983, 96 Stat. 2222; 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(m), Dec. 22, 1987, 101 Stat. 1330–231; Pub. L. 104–66, title I, § 1051(i), Dec. 21, 1995, 109 Stat. 716.) Editorial Notes AMENDMENTS 1995—Subsec. (c). Pub. L. 104–66 struck out after third sentence ‘‘If such written agreement is not completed within such period, the Secretary shall report to the Congress in writing within 30 days on the status of ne- gotiations to develop such agreement and the reasons why such agreement has not been completed. Prior to submission of such report to the Congress, the Sec- retary shall transmit such report to the Governor of such State or the governing body of such affected In- dian tribe, as the case may be, for their review and comments. Such comments shall be included in such report prior to submission to the Congress.’’ 1987—Subsec. (d). Pub. L. 100–202 and Pub. L. 100–203 amended section identically, adding subsec. (d). § 10138. Participation of Indian tribes (a) Participation of Indian tribes in repository siting decisions Upon the submission by the President to the Congress of a recommendation of a site for a re- pository located on the reservation of an af- fected Indian tribe, the governing body of such Indian tribe may disapprove the site designation and submit to the Congress a notice of dis- approval. The governing body of such Indian tribe may submit such a notice of disapproval to the Congress not later than the 60 days after the date that the President recommends such site to the Congress under section 10134 of this title. A notice of disapproval shall be considered to be submitted to the Congress on the date of the transmittal of such notice of disapproval to the Speaker of the House and the President pro tem- pore of the Senate. Such notice of disapproval shall be accompanied by a statement of reasons explaining why the governing body of such In- dian tribe disapproved the recommended reposi- tory site involved. (b) Financial assistance (1) The Secretary shall make grants to each affected tribe notified under section 10136(a) of this title for the purpose of participating in ac- tivities required by section 10137 of this title or authorized by written agreement entered into pursuant to section 10137(c) of this title. Any salary or travel expense that would ordinarily be incurred by such tribe, may not be considered eligible for funding under this paragraph. (2)(A) The Secretary shall make grants to each affected Indian tribe where a candidate site for a repository is approved under section 10132(c) of this title. Such grants may be made to each such Indian tribe only for purposes of enabling such Indian tribe— (i) to review activities taken under this part with respect to such site for purposes of deter- mining any potential economic, social, public health and safety, and environmental impacts of such repository on the reservation and its residents; (ii) to develop a request for impact assist- ance under paragraph (2); (iii) to engage in any monitoring, testing, or evaluation activities with respect to site char- acterization programs with regard to such site; (iv) to provide information to the residents of its reservation regarding any activities of such Indian tribe, the Secretary, or the Com- mission with respect to such site; and (v) to request information from, and make comments and recommendations to, the Sec- retary regarding any activities taken under this part with respect to such site. (B) The amount of funds provided to any af- fected Indian tribe under this paragraph in any fiscal year may not exceed 100 percent of the costs incurred by such Indian tribe with respect to the activities described in clauses (i) through (v) of subparagraph (A). Any salary or travel ex- pense that would ordinarily be incurred by such Indian tribe may not be considered eligible for funding under this paragraph. (3)(A) The Secretary shall provide financial and technical assistance to any affected Indian tribe requesting such assistance and where there is a site with respect to which the Commission has authorized construction of a repository. Such assistance shall be designed to mitigate the impact on such Indian tribe of the develop- ment of such repository. Such assistance to such Indian tribe shall commence within 6 months following the granting by the Commission of a construction authorization for such repository and following the initiation of construction ac- tivities at such site. (B) Any affected Indian tribe desiring assist- ance under this paragraph shall prepare and sub- mit to the Secretary a report on any economic, social, public health and safety, and environ- mental impacts that are likely as a result of the development of a repository at a site on the res- ervation of such Indian tribe. Such report shall be submitted to the Secretary following the completion of site characterization activities at such site and before the recommendation of such site to the President by the Secretary for appli- cation for a construction authorization for a re- pository. As soon as practicable following the granting of a construction authorization for such repository, the Secretary shall seek to enter into a binding agreement with the Indian tribe involved setting forth the amount of as- Page 7991 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10139 1 So in original. Probably should be designated ‘‘(5)(A)’’. 2 So in original. Probably should be followed by ‘‘or’’. 1 So in original. No subsec. (b) has been enacted. sistance to be provided to such Indian tribe under this paragraph and the procedures to be followed in providing such assistance. (4) The Secretary shall grant to each affected Indian tribe where a site for a repository is ap- proved under section 10132(c) of this title an amount each fiscal year equal to the amount such Indian tribe would receive were it author- ized to tax site characterization activities at such site, and the development and operation of such repository, as such Indian tribe taxes the other commercial activities occurring on such reservation. Such grants shall continue until such time as all such activities, development, and operation are terminated at such site. (5) 1 An affected Indian tribe may not receive any grant under paragraph (1) after the expira- tion of the 1-year period following— (i) the date on which the Secretary notifies such Indian tribe of the termination of site characterization activities at the candidate site involved on the reservation of such Indian tribe; (ii) the date on which such site is dis- approved under section 10135 of this title; (iii) the date on which the Commission dis- approves an application for a construction au- thorization for a repository at such site; 2 (iv) December 22, 1987; whichever occurs first, unless there is another candidate site on the reservation of such Indian tribe that is approved under section 10132(c) of this title and with respect to which the actions described in clauses (i), (ii), and (iii) have not been taken. (B) An affected Indian tribe may not receive any further assistance under paragraph (2) with respect to a site if repository construction ac- tivities at such site are terminated by the Sec- retary or if such activities are permanently en- joined by any court. (C) At the end of the 2-year period beginning on the effective date of any license to receive and possess for a repository at a site on the res- ervation of an affected Indian tribe, no Federal funds shall be made available under paragraph (1) or (2) to such Indian tribe, except for— (i) such funds as may be necessary to sup- port activities of such Indian tribe related to any other repository where a license to receive and possess has not been in effect for more than 1 year; and (ii) such funds as may be necessary to sup- port activities of such Indian tribe pursuant to agreements or contracts for impact assistance entered into, under paragraph (2), by such In- dian tribe with the Secretary during such 2- year period. (6) Financial assistance authorized in this sub- section shall be made out of amounts held in the Nuclear Waste Fund established in section 10222 of this title. (Pub. L. 97–425, title I, § 118, Jan. 7, 1983, 96 Stat. 2225; Pub. L. 100–202, § 101(d) [title III, § 300], Dec. 22, 1987, 101 Stat. 1329–104, 1329–121; Pub. L. 100–203, title V, § 5033, Dec. 22, 1987, 101 Stat. 1330–243.) Editorial Notes AMENDMENTS 1987—Subsec. (b)(5)(iv). Pub. L. 100–202 and Pub. L. 100–203 amended par. (5) identically, adding cl. (iv). § 10139. Judicial review of agency actions (a) Jurisdiction of United States courts of ap- peals (1) Except for review in the Supreme Court of the United States, the United States courts of appeals shall have original and exclusive juris- diction over any civil action— (A) for review of any final decision or action of the Secretary, the President, or the Com- mission under this part; (B) alleging the failure of the Secretary, the President, or the Commission to make any de- cision, or take any action, required under this part; (C) challenging the constitutionality of any decision made, or action taken, under any pro- vision of this part; (D) for review of any environmental impact statement prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to any action under this part, or as required under section 10155(c)(1) of this title, or alleging a failure to prepare such statement with respect to any such action; (E) for review of any environmental assess- ment prepared under section 10132(b)(1) or 10155(c)(2) of this title; or (F) for review of any research and develop- ment activity under subchapter II. (2) The venue of any proceeding under this sec- tion shall be in the judicial circuit in which the petitioner involved resides or has its principal office, or in the United States Court of Appeals for the District of Columbia. (c) 1 Deadline for commencing action A civil action for judicial review described under subsection (a)(1) may be brought not later than the 180th day after the date of the decision or action or failure to act involved, as the case may be, except that if a party shows that he did not know of the decision or action complained of (or of the failure to act), and that a reasonable person acting under the circumstances would not have known, such party may bring a civil action not later than the 180th day after the date such party acquired actual or constructive knowledge of such decision, action, or failure to act. (Pub. L. 97–425, title I, § 119, Jan. 7, 1983, 96 Stat. 2227.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (a)(1)(D), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of this title. For complete classi- fication of this Act to the Code, see Short Title note set out under section 4321 of this title and Tables.