42 U.S.C. § 10137 — Consultation with States and affected In-

Page 7988 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10137 (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 Nevada resi- dents regarding any activities of such State, the Secretary, or the Commission 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. (C) Any salary or travel expense that would ordinarily be incurred by the State of Nevada or any affected unit of local government may not be considered eligible for funding under this paragraph. (2)(A)(i) The Secretary shall provide financial and technical assistance to the State of Nevada, and any affected unit of local government re- questing such assistance. (ii) Such assistance shall be designed to miti- gate the impact on such State or affected unit of local government of the development of such re- pository and the characterization of such site. (iii) Such assistance to such State or affected unit of local government of such State shall commence upon the initiation of site character- ization activities. (B) The State of Nevada and any affected unit of local government may request assistance under this subsection by preparing and submit- ting to the Secretary a report on the economic, social, public health and safety, and environ- mental impacts that are likely to result from site characterization activities at the Yucca Mountain site. Such report shall be submitted to the Secretary after the Secretary has sub- mitted to the State a general plan for site char- acterization activities under section 10133(b) of this title. (C) As soon as practicable after the Secretary has submitted such site characterization plan, the Secretary shall seek to enter into a binding agreement with the State of Nevada setting forth— (i) the amount of assistance to be provided under this subsection to such State or affected unit of local government; and (ii) the procedures to be followed in pro- viding such assistance. (3)(A) In addition to financial assistance pro- vided under paragraphs (1) and (2), the Secretary shall grant to the State of Nevada and any af- fected unit of local government an amount each fiscal year equal to the amount such State or af- fected unit of local government, respectively, would receive if authorized to tax site charac- terization activities at such site, and the devel- opment and operation of such repository, as such State or affected unit of local government taxes the non-Federal real property and indus- trial activities occurring within such State or affected unit of local government. (B) Such grants shall continue until such time as all such activities, development, and oper- ation are terminated at such site. (4)(A) The State of Nevada or any affected unit of local government may not receive any grant under paragraph (1) after the expiration of the 1- year period following— (i) the date on which the Secretary notifies the Governor and legislature of the State of Nevada of the termination of site character- ization activities at the site in such State; (ii) the date on which the Yucca Mountain site is disapproved under section 10135 of this title; or (iii) the date on which the Commission dis- approves an application for a construction au- thorization for a repository at such site; whichever occurs first. (B) The State of Nevada or any affected unit of local government may not receive any further assistance under paragraph (2) with respect to a site if repository construction activities or site characterization activities at such site are ter- minated by the Secretary or if such activities are permanently enjoined 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 in a State, no Fed- eral funds, shall be made available to such State or affected unit of local government under para- graph (1) or (2), except for— (i) such funds as may be necessary to sup- port activities related to any other repository located in, or proposed to be located in, such State, and for which a license to receive and possess has not been in effect for more than 1 year; (ii) such funds as may be necessary to sup- port State activities pursuant to agreements or contracts for impact assistance entered into, under paragraph (2), by such State with the Secretary during such 2-year period; and (iii) such funds as may be provided under an agreement entered into under subchapter IV. (5) Financial assistance authorized in this sub- section shall be made out of amounts held in the Waste Fund. (6) No State, other than the State of Nevada, may receive financial assistance under this sub- section after December 22, 1987. (d) Additional notification and consultation Whenever the Secretary is required under any provision of this chapter to notify or consult with the governing body of an affected Indian tribe where a site is located, the Secretary shall also notify or consult with, as the case may be, the Governor of the State in which such reserva- tion is located. (Pub. L. 97–425, title I, § 116, Jan. 7, 1983, 96 Stat. 2220; Pub. L. 100–202, § 101(d) [title III, § 300], Dec. 22, 1987, 101 Stat. 1329–104, 1329–121; Pub. L. 100–203, title V, § 5032(a), Dec. 22, 1987, 101 Stat. 1330–241.) Editorial Notes AMENDMENTS 1987—Subsec. (c). Pub. L. 100–202 and Pub. L. 100–203 generally amended subsec. (c) identically, substituting provisions consisting of pars. (1) to (6) for former provi- sions consisting of pars. (1) to (5). § 10137. Consultation with States and affected In- dian tribes (a) Provision of information (1) The Secretary, the Commission, and other agencies involved in the construction, oper- Page 7989 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10137 1 So in original. Probably should be ‘‘locating’’. 2 So in original. The comma probably should not appear. ation, or regulation of any aspect of a repository in a State shall provide to the Governor and leg- islature of such State, and to the governing body of any affected Indian tribe, timely and complete information regarding determinations or plans made with respect to the site character- ization siting, development, design, licensing, construction, operation, regulation, or decom- missioning of such repository. (2) Upon written request for such information by the Governor or legislature of such State, or by the governing body of any affected Indian tribe, as the case may be, the Secretary shall provide a written response to such request with- in 30 days of the receipt of such request. Such response shall provide the information requested or, in the alternative, the reasons why the infor- mation cannot be so provided. If the Secretary fails to so respond within such 30 days, the Gov- ernor or legislature of such State, or the gov- erning body of any affected Indian tribe, as the case may be, may transmit a formal written ob- jection to such failure to respond to the Presi- dent. If the President or Secretary fails to re- spond to such written request within 30 days of the receipt by the President of such formal writ- ten objection, the Secretary shall immediately suspend all activities in such State authorized by this part, and shall not renew such activities until the Governor or legislature of such State, or the governing body of any affected Indian tribe, as the case may be, has received the writ- ten response to such written request required by this subsection. (b) Consultation and cooperation In performing any study of an area within a State for the purpose of determining the suit- ability of such area for a repository pursuant to section 10132(c) of this title, and in subsequently developing and loading 1 any repository within such State, the Secretary shall consult and co- operate with the Governor and legislature of such State and the governing body of any af- fected Indian tribe in an effort to resolve the concerns of such State and any affected Indian tribe regarding the public health and safety, en- vironmental, and economic impacts of any such repository. In carrying out his duties under this part, the Secretary shall take such concerns into account to the maximum extent feasible and as specified in written agreements entered into under subsection (c). (c) Written agreement Not later than 60 days after (1) the approval of a site for site characterization for such a reposi- tory under section 10132(c) of this title, or (2) the written request of the State or Indian tribe in any affected State notified under section 10136(a) of this title to the Secretary, which- ever,2 first occurs, the Secretary shall seek to enter into a binding written agreement, and shall begin negotiations, with such State and, where appropriate, to enter into a separate bind- ing agreement with the governing body of any affected Indian tribe, setting forth (but not lim- ited to) the procedures under which the require- ments of subsections (a) and (b), and the provi- sions of such written agreement, shall be carried out. Any such written agreement shall not af- fect the authority of the Commission under ex- isting law. Each such written agreement shall, to the maximum extent feasible, be completed not later than 6 months after such notification. Such written agreement shall specify proce- dures— (1) by which such State or governing body of an affected Indian tribe, as the case may be, may study, determine, comment on, and make recommendations with regard to the possible public health and safety, environmental, so- cial, and economic impacts of any such reposi- tory; (2) by which the Secretary shall consider and respond to comments and recommendations made by such State or governing body of an affected Indian tribe, including the period in which the Secretary shall so respond; (3) by which the Secretary and such State or governing body of an affected Indian tribe may review or modify the agreement periodically; (4) by which such State or governing body of an affected Indian tribe is to submit an impact report and request for impact assistance under section 10136(c) of this title or section 10138(b) of this title, as the case may be; (5) by which the Secretary shall assist such State, and the units of general local govern- ment in the vicinity of the repository site, in resolving the offsite concerns of such State and units of general local government, includ- ing, but not limited to, questions of State li- ability arising from accidents, necessary road upgrading and access to the site, ongoing emergency preparedness and emergency re- sponse, monitoring of transportation of high- level radioactive waste and spent nuclear fuel through such State, conduct of baseline health studies of inhabitants in neighboring commu- nities near the repository site and reasonable periodic monitoring thereafter, and moni- toring of the repository site upon any decom- missioning and decontamination; (6) by which the Secretary shall consult and cooperate with such State on a regular, ongo- ing basis and provide for an orderly process and timely schedule for State review and eval- uation, including identification in the agree- ment of key events, milestones, and decision points in the activities of the Secretary at the potential repository site; (7) by which the Secretary shall notify such State prior to the transportation of any high- level radioactive waste and spent nuclear fuel into such State for disposal at the repository site; (8) by which such State may conduct reason- able independent monitoring and testing of ac- tivities on the repository site, except that such monitoring and testing shall not unrea- sonably interfere with or delay onsite activi- ties; (9) for sharing, in accordance with applicable law, of all technical and licensing information, the utilization of available expertise, the fa- cilitating of permit procedures, joint project review, and the formulation of joint surveil- lance and monitoring arrangements to carry out applicable Federal and State laws; 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-