42 U.S.C. § 2021e — Limited availability of certain regional

Page 5381 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e ‘‘SEC. 2. CONGRESSIONAL FINDING. ‘‘The Congress finds that the compact set forth in section 5 is in furtherance of the Low-Level Radio- active Waste Policy Act [42 U.S.C. 2021b–2021j]. ‘‘SEC. 3. CONDITIONS OF CONSENT TO COMPACT. ‘‘The consent of the Congress to the compact set forth in section 5— ‘‘(1) shall become effective on the date of the enact- ment of this Act [May 19, 1988], ‘‘(2) is granted subject to the provisions of the Low- Level Radioactive Waste Policy Act [42 U.S.C. 2021b–2021j], and ‘‘(3) is granted only for so long as the Appalachian States Low-Level Radioactive Waste Commission, ad- visory committees, and regional boards established in the compact comply with all the provisions of such Act. ‘‘SEC. 4. CONGRESSIONAL REVIEW. ‘‘The Congress may alter, amend, or repeal this Act with respect to the compact set forth in section 5 after the expiration of the 10-year period following the date of the enactment of this Act [May 19, 1988], and at such intervals thereafter as may be provided for in such compact. ‘‘SEC. 5. APPALACHIAN STATES LOW-LEVEL RA- DIOACTIVE WASTE COMPACT. ‘‘In accordance with section 4(a)(2) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021d(A)(2) [42 U.S.C. 2021d(a)(2)]), the consent of Congress is given to the States of Pennsylvania, West Virginia, and any eli- gible States as defined in Article 5(A) of the Appa- lachian States Low-Level Radioactive Waste Compact to enter into such compact. Such compact is substan- tially as follows: [Text of compact appears at 102 Stat. 471]’’. OMNIBUS LOW-LEVEL RADIOACTIVE WASTE INTERSTATE COMPACT CONSENT ACT Pub. L. 99–240, title II, Jan. 15, 1986, 99 Stat. 1859, pro- vided that: ‘‘SEC. 201. SHORT TITLE. ‘‘This Title may be cited as the ‘Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act’. ‘‘Subtitle A—General Provisions ‘‘SEC. 211. CONGRESSIONAL FINDING. ‘‘The Congress hereby finds that each of the compacts set forth in subtitle B is in furtherance of the Low- Level Radioactive Waste Policy Act [42 U.S.C. 2021b–2021j]. ‘‘SEC. 212. CONDITIONS OF CONSENT TO COMPACTS. ‘‘The consent of the Congress to each of the compacts set forth in subtitle B— ‘‘(1) shall become effective on the date of the enact- ment of this Act [Jan. 15, 1986]; ‘‘(2) is granted subject to the provisions of the Low- Level Radioactive Waste Policy Act, as amended [42 U.S.C. 2021b–2021j]; and ‘‘(3) is granted only for so long as the regional com- mission, committee, or board established in the com- pact complies with all of the provisions of such Act. ‘‘SEC. 213. CONGRESSIONAL REVIEW. ‘‘The Congress may alter, amend, or repeal this Act with respect to any compact set forth in subtitle B after the expiration of the 10-year period following the date of the enactment of this Act [Jan. 15, 1986], and at such intervals thereafter as may be provided in such compact. ‘‘Subtitle B—Congressional Consent to Compacts ‘‘SEC. 221. NORTHWEST INTERSTATE COMPACT ON LOW-LEVEL RADIOACTIVE WASTE MANAGE- MENT. ‘‘The consent of Congress is hereby given to the states of Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, and Wyoming to enter into the Northwest Interstate Compact on Low-level Radio- active Waste Management, and to each and every part and article thereof. Such compact reads substantially as follows: [Text of compact appears at 99 Stat. 1860.] ‘‘SEC. 222. CENTRAL INTERSTATE LOW-LEVEL RA- DIOACTIVE WASTE COMPACT. ‘‘The consent of Congress is hereby given to the states of Arkansas, Iowa, Kansas, Louisiana, Min- nesota, Missouri, Nebraska, North Dakota, and Okla- homa to enter into the Central Interstate Low-Level Radioactive Waste Compact, and to each and every part and article thereof. Such compact reads substantially as follows: [Text of compact appears at 99 Stat. 1863.] ‘‘SEC. 223. SOUTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT COM- PACT. ‘‘In accordance with section 4(a)(2) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021d(a)(2)), the consent of the Congress is hereby given to the States of Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia to enter into the Southeast Interstate Low-Level Radio- active Waste Management Compact. Such compact is substantially as follows: [Text of compact appears at 99 Stat. 1871; 103 Stat. 1289.] ‘‘SEC. 224. CENTRAL MIDWEST INTERSTATE LOW- LEVEL RADIOACTIVE WASTE COMPACT. ‘‘In accordance with section 4(a)(2) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021d(a)(2)), the consent of the Congress hereby is given to the States of Illinois and Kentucky to enter into the Cen- tral Midwest Interstate Low-Level Radioactive Waste Compact. Such compact is substantially as follows: [Text of compact appears at 99 Stat. 1880; 108 Stat. 4607.] ‘‘SEC. 225. MIDWEST INTERSTATE LOW-LEVEL RA- DIOACTIVE WASTE MANAGEMENT COMPACT. ‘‘The consent of Congress is hereby given to the States of Iowa, Indiana, Michigan, Minnesota, Mis- souri, Ohio, and Wisconsin to enter into the Midwest Interstate Compact on Low-level Radioactive Waste Management. Such compact is as follows: [Text of com- pact appears at 99 Stat. 1892.] ‘‘SEC. 226. ROCKY MOUNTAIN LOW-LEVEL RADIO- ACTIVE WASTE COMPACT. ‘‘In accordance with section 4(a)(2) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021d(a)(2)), the consent of the Congress hereby is given to the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming to enter into the Rocky Mountain Interstate Low-Level Radioactive Waste Compact. Such compact is substantially as follows: [Text of com- pact appears at 99 Stat. 1902.] ‘‘SEC. 227. NORTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT COM- PACT. ‘‘In accordance with section 4(a)(2) of the Low-Level Radioactive Waste Policy Act [42 U.S.C. 2021d(a)(2)], the consent of the Congress is hereby given to the States of Connecticut, New Jersey, Delaware, and Maryland to enter into the Northeast Interstate Low- Level Radioactive Waste Management Compact. Such compact is substantially as follows: [Text of compact appears at 99 Stat. 1910.].’’ § 2021e. Limited availability of certain regional disposal facilities during transition and li- censing periods (a) Availability of disposal capacity (1) Pressurized water and boiling water reac- tors During the seven-year period beginning Jan- uary 1, 1986 and ending December 31, 1992, sub- Page 5382 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e ject to the provisions of subsections (b) through (g), each State in which there is lo- cated a regional disposal facility referred to in paragraphs (1) through (3) of subsection (b) shall make disposal capacity available for low- level radioactive waste generated by pressur- ized water and boiling water commercial nu- clear power reactors in accordance with the allocations established in subsection (c). (2) Other sources of low-level radioactive waste During the seven-year period beginning Jan- uary 1, 1986 and ending December 31, 1992, sub- ject to the provisions of subsections (b) through (g), each State in which there is lo- cated a regional disposal facility referred to in paragraphs (1) through (3) of subsection (b) shall make disposal capacity available for low- level radioactive waste generated by any source not referred to in paragraph (1). (3) Allocation of disposal capacity (A) During the seven-year period beginning January 1, 1986 and ending December 31, 1992, low-level radioactive waste generated within a sited compact region shall be accorded pri- ority under this section in the allocation of available disposal capacity at a regional dis- posal facility referred to in paragraphs (1) through (3) of subsection (b) and located in the sited compact region in which such waste is generated. (B) Any State in which a regional disposal facility referred to in paragraphs (1) through (3) of subsection (b) is located may, subject to the provisions of its compact, prohibit the dis- posal at such facility of low-level radioactive waste generated outside of the compact region if the disposal of such waste in any given cal- endar year, together with all other low-level radioactive waste disposed of at such facility within that same calendar year, would result in that facility disposing of a total annual vol- ume of low-level radioactive waste in excess of 100 per centum of the average annual volume for such facility designated in subsection (b): Provided, however, That in the event that all three States in which regional disposal facili- ties referred to in paragraphs (1) through (3) of subsection (b) act to prohibit the disposal of low-level radioactive waste pursuant to this subparagraph, each such State shall, in ac- cordance with any applicable procedures of its compact, permit, as necessary, the disposal of additional quantities of such waste in incre- ments of 10 per centum of the average annual volume for each such facility designated in subsection (b). (C) Nothing in this paragraph shall require any disposal facility or State referred to in paragraphs (1) through (3) of subsection (b) to accept for disposal low-level radioactive waste in excess of the total amounts designated in subsection (b). (4) Cessation of operation of low-level radio- active waste disposal facility No provision of this section shall be con- strued to obligate any State referred to in paragraphs (1) through (3) of subsection (b) to accept low-level radioactive waste from any source in the event that the regional disposal facility located in such State ceases oper- ations. (b) Limitations The availability of disposal capacity for low- level radioactive waste from any source shall be subject to the following limitations: (1) Barnwell, South Carolina The State of South Carolina, in accordance with the provisions of its compact, may limit the volume of low-level radioactive waste ac- cepted for disposal at the regional disposal fa- cility located at Barnwell, South Carolina to a total of 8,400,000 cubic feet of low-level radio- active waste during the 7-year period begin- ning January 1, 1986, and ending December 31, 1992 (as based on an average annual volume of 1,200,000 cubic feet of low-level radioactive waste). (2) Richland, Washington The State of Washington, in accordance with the provisions of its compact, may limit the volume of low-level radioactive waste accept- ed for disposal at the regional disposal facility located at Richland, Washington to a total of 9,800,000 cubic feet of low-level radioactive waste during the 7-year period beginning Jan- uary 1, 1986, and ending December 31, 1992 (as based on an average annual volume of 1,400,000 cubic feet of low-level radioactive waste). (3) Beatty, Nevada The State of Nevada, in accordance with the provisions of its compact, may limit the vol- ume of low-level radioactive waste accepted for disposal at the regional disposal facility lo- cated at Beatty, Nevada to a total of 1,400,000 cubic feet of low-level radioactive waste dur- ing the 7-year period beginning January 1, 1986, and ending December 31, 1992 (as based on an average annual volume of 200,000 cubic feet of low-level radioactive waste). (c) Commercial nuclear power reactor alloca- tions (1) Amount Subject to the provisions of subsections (a) through (g) each commercial nuclear power re- actor shall upon request receive an allocation of low-level radioactive waste disposal capac- ity (in cubic feet) at the facilities referred to in subsection (b) during the 4-year transition period beginning January 1, 1986, and ending December 31, 1989, and during the 3-year li- censing period beginning January 1, 1990, and ending December 31, 1992, in an amount cal- culated by multiplying the appropriate num- ber from the following table by the number of months remaining in the applicable period as determined under paragraph (2). Reactor Type 4-year Transition Period 3-year Licensing Period In Sited Region All Other Locations In Sited Region All Other Locations PWR ... 1027 871 934 685 BWR ... 2300 1951 2091 1533 (2) Method of calculation For purposes of calculating the aggregate amount of disposal capacity available to a Page 5383 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e commercial nuclear power reactor under this subsection, the number of months shall be computed beginning with the first month of the applicable period, or the sixteenth month after receipt of a full power operating license, whichever occurs later. (3) Unused allocations Any unused allocation under paragraph (1) received by a reactor during the transition pe- riod or the licensing period may be used at any time after such reactor receives its full power license or after the beginning of the per- tinent period, whichever is later, but not in any event after December 31, 1992, or after commencement of operation of a regional dis- posal facility in the compact region or State in which such reactor is located, whichever oc- curs first. (4) Transferability Any commercial nuclear power reactor in a State or compact region that is in compliance with the requirements of subsection (e) may assign any disposal capacity allocated to it under this subsection to any other person in each State or compact region. Such assign- ment may be for valuable consideration and shall be in writing, copies of which shall be filed at the affected compact commissions and States, along with the assignor’s uncondi- tional written waiver of the disposal capacity being assigned. (5) Unusual volumes (A) The Secretary may, upon petition by the owner or operator of any commercial nuclear power reactor, allocate to such reactor dis- posal capacity in excess of the amount cal- culated under paragraph (1) if the Secretary finds and states in writing his reasons for so finding that making additional capacity avail- able for such reactor through this paragraph is required to permit unusual or unexpected op- erating, maintenance, repair or safety activi- ties. (B) The Secretary may not make allocations pursuant to subparagraph (A) that would re- sult in the acceptance for disposal of more than 800,000 cubic feet of low-level radioactive waste or would result in the total of the allo- cations made pursuant to this subsection ex- ceeding 11,900,000 cubic feet over the entire seven-year interim access period. (6) Limitation During the seven-year interim access period referred to in subsection (a), the disposal fa- cilities referred to in subsection (b) shall not be required to accept more than 11,900,000 cubic feet of low-level radioactive waste gen- erated by commercial nuclear power reactors. (d) Use of surcharge funds for milestone incen- tives; consequences of failure to meet dis- posal deadline (1) Surcharges The disposal of any low-level radioactive waste under this section (other than low-level radioactive waste generated in a sited com- pact region) may be charged a surcharge by the State in which the applicable regional dis- posal facility is located, in addition to the fees and surcharges generally applicable for dis- posal of low-level radioactive waste in the re- gional disposal facility involved. Except as provided in subsection (e)(2), such surcharges shall not exceed— (A) in 1986 and 1987, $10 per cubic foot of low-level radioactive waste; (B) in 1988 and 1989, $20 per cubic foot of low-level radioactive waste; and (C) in 1990, 1991, and 1992, $40 per cubic foot of low-level radioactive waste. (2) Milestone incentives (A) Escrow account Twenty-five per centum of all surcharge fees received by a State pursuant to para- graph (1) during the seven-year period re- ferred to in subsection (a) shall be trans- ferred on a monthly basis to an escrow ac- count held by the Secretary. The Secretary shall deposit all funds received in a special escrow account. The funds so deposited shall not be the property of the United States. The Secretary shall act as trustee for such funds and shall invest them in interest-bear- ing United States Government Securities with the highest available yield. Such funds shall be held by the Secretary until— (i) paid or repaid in accordance with sub- paragraph (B) or (C); or (ii) paid to the State collecting such fees in accordance with subparagraph (F). (B) Payments (i) JULY 1, 1986.—The twenty-five per centum of any amount collected by a State under paragraph (1) for low-level ra- dioactive waste disposed of under this sec- tion during the period beginning on Janu- ary 15, 1986, and ending June 30, 1986, and transferred to the Secretary under sub- paragraph (A), shall be paid by the Sec- retary in accordance with subparagraph (D) if the milestone described in sub- section (e)(1)(A) is met by the State in which such waste originated. (ii) JANUARY 1, 1988.—The twenty-five per centum of any amount collected by a State under paragraph (1) for low-level ra- dioactive waste disposed of under this sec- tion during the period beginning July 1, 1986 and ending December 31, 1987, and transferred to the Secretary under sub- paragraph (A), shall be paid by the Sec- retary in accordance with subparagraph (D) if the milestone described in sub- section (e)(1)(B) is met by the State in which such waste originated (or its com- pact region, where applicable). (iii) JANUARY 1, 1990.—The twenty-five per centum of any amount collected by a State under paragraph (1) for low-level ra- dioactive waste disposed of under this sec- tion during the period beginning January 1, 1988 and ending December 31, 1989, and transferred to the Secretary under sub- paragraph (A), shall be paid by the Sec- retary in accordance with subparagraph (D) if the milestone described in sub- section (e)(1)(C) is met by the State in Page 5384 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e 1 So in original. Probably should be ‘‘subparagraph’’. which such waste originated (or its com- pact region, where applicable). (iv) The twenty-five per centum of any amount collected by a State under para- graph (1) for low-level radioactive waste disposed of under this section during the period beginning January 1, 1990 and end- ing December 31, 1992, and transferred to the Secretary under subparagrah 1 (A), shall be paid by the Secretary in accord- ance with subparagraph (D) if, by January 1, 1993, the State in which such waste originated (or its compact region, where applicable) is able to provide for the dis- posal of all low-level radioactive waste generated within such State or compact region. (C) Failure to meet January 1, 1993 deadline If, by January 1, 1993, a State (or, where applicable, a compact region) in which low- level radioactive waste is generated is un- able to provide for the disposal of all such waste generated within such State or com- pact region— (i) each State in which such waste is gen- erated, upon the request of the generator or owner of the waste, shall take title to the waste, shall be obligated to take pos- session of the waste, and shall be liable for all damages directly or indirectly incurred by such generator or owner as a con- sequence of the failure of the State to take possession of the waste as soon after Janu- ary 1, 1993 as the generator or owner noti- fies the State that the waste is available for shipment; or (ii) if such State elects not to take title to, take possession of, and assume liability for such waste, pursuant to clause (i), twenty-five per centum of any amount col- lected by a State under paragraph (1) for low-level radioactive waste disposed of under this section during the period begin- ning January 1, 1990 and ending December 31, 1992 shall be repaid, with interest, to each generator from whom such surcharge was collected. Repayments made pursuant to this clause shall be made on a monthly basis, with the first such repayment begin- ning on February 1, 1993, in an amount equal to one thirty-sixth of the total amount required to be repaid pursuant to this clause, and shall continue until the State (or, where applicable, compact re- gion) in which such low-level radioactive waste is generated is able to provide for the disposal of all such waste generated within such State or compact region or until January 1, 1996, whichever is earlier. If a State in which low-level radioactive waste is generated elects to take title to, take possession of, and assume liability for such waste pursuant to clause (i), such State shall be paid such amounts as are designated in subparagraph (B)(iv). If a State (or, where applicable, a compact region) in which low- level radioactive waste is generated provides for the disposal of such waste at any time after January 1, 1993 and prior to January 1, 1996, such State (or, where applicable, com- pact region) shall be paid in accordance with subparagraph (D) a lump sum amount equal to twenty-five per centum of any amount collected by a State under paragraph (1): Provided, however, That such payment shall be adjusted to reflect the remaining number of months between January 1, 1993 and Janu- ary 1, 1996 for which such State (or, where applicable, compact region) provides for the disposal of such waste. If a State (or, where applicable, a compact region) in which low- level radioactive waste is generated is un- able to provide for the disposal of all such waste generated within such State or com- pact region by January 1, 1996, each State in which such waste is generated, upon the re- quest of the generator or owner of the waste, shall take title to the waste, be obligated to take possession of the waste, and shall be liable for all damages directly or indirectly incurred by such generator or owner as a consequence of the failure of the State to take possession of the waste as soon after January 1, 1996, as the generator or owner notifies the State that the waste is available for shipment. (D) Recipients of payments The payments described in subparagraphs (B) and (C) shall be paid within thirty days after the applicable date— (i) if the State in which such waste origi- nated is not a member of a compact re- gion, to such State; (ii) if the State in which such waste originated is a member of the compact re- gion, to the compact commission serving such State. (E) Uses of payments (i) Limitations Any amount paid under subparagraphs (B) or (C) may only be used to— (I) establish low-level radioactive waste disposal facilities; (II) mitigate the impact of low-level radioactive waste disposal facilities on the host State; (III) regulate low-level radioactive waste disposal facilities; or (IV) ensure the decommissioning, clo- sure, and care during the period of insti- tutional control of low-level radioactive waste disposal facilities. (ii) Reports (I) Recipient Any State or compact commission re- ceiving a payment under subparagraphs (B) or (C) shall, on December 31 of each year in which any such funds are ex- pended, submit a report to the Depart- ment of Energy itemizing any such ex- penditures. (II) Department of Energy Not later than six months after receiv- ing the reports under subclause (I), the Secretary shall submit to the Congress a summary of all such reports that shall Page 5385 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e include an assessment of the compliance of each such State or compact commis- sion with the requirements of clause (i). (F) Payment to States Any amount collected by a State under paragraph (1) that is placed in escrow under subparagraph (A) and not paid to a State or compact commission under subparagraphs (B) and (C) or not repaid to a generator under subparagraph (C) shall be paid from such escrow account to such State collecting such payment under paragraph (1). Such payment shall be made not later than 30 days after a determination of ineligibility for a refund is made. (G) Penalty surcharges No rebate shall be made under this sub- section of any surcharge or penalty sur- charge paid during a period of noncompli- ance with subsection (e)(1). (e) Requirements for access to regional disposal facilities (1) Requirements for non-sited compact re- gions and non-member States Each non-sited compact region, or State that is not a member of a compact region that does not have an operating disposal facility, shall comply with the following requirements: (A) By July 1, 1986, each such non-member State shall ratify compact legislation or, by the enactment of legislation or the certifi- cation of the Governor, indicate its intent to develop a site for the location of a low-level radioactive waste disposal facility within such State. (B) By January 1, 1988 (i) each non-sited compact region shall identify the State in which its low-level radioactive waste disposal facility is to be located, or shall have selected the devel- oper for such facility and the site to be de- veloped, and each compact region or the State in which its low-level radioactive waste disposal facility is to be located shall develop a siting plan for such facility providing detailed procedures and a sched- ule for establishing a facility location and preparing a facility license application and shall delegate authority to implement such plan; (ii) each non-member State shall develop a siting plan providing detailed procedures and a schedule for establishing a facility location and preparing a facility license application for a low-level radioactive waste disposal facility and shall delegate authority to implement such plan; and (iii) The siting plan required pursuant to this paragraph shall include a description of the optimum way to attain operation of the low-level radioactive waste disposal fa- cility involved, within the time period specified in sections 2021b to 2021j of this title. Such plan shall include a description of the objectives and a sequence of dead- lines for all entities required to take ac- tion to implement such plan, including, to the extent practicable, an identification of the activities in which a delay in the start, or completion, of such activities will cause a delay in beginning facility operation. Such plan shall also identify, to the extent practicable, the process for (1) screening for broad siting areas; (2) identifying and evaluating specific candidate sites; and (3) characterizing the preferred site(s), com- pleting all necessary environmental as- sessments, and preparing a license applica- tion for submission to the Nuclear Regu- latory Commission or an Agreement State. (C) By January 1, 1990 (i) a complete application (as determined by the Nuclear Regulatory Commission or the appropriate agency of an agreement State) shall be filed for a license to oper- ate a low-level radioactive waste disposal facility within each non-sited compact re- gion or within each non-member State; or (ii) the Governor (or, for any State with- out a Governor, the chief executive officer) of any State that is not a member of a compact region in compliance with clause (i), or has not complied with such clause by its own actions, shall provide a written certification to the Nuclear Regulatory Commission, that such State will be capa- ble of providing for, and will provide for, the storage, disposal, or management of any low-level radioactive waste generated within such State and requiring disposal after December 31, 1992, and include a de- scription of the actions that will be taken to ensure that such capacity exists. (D) By January 1, 1992, a complete applica- tion (as determined by the Nuclear Regu- latory Commission or the appropriate agen- cy of an agreement State) shall be filed for a license to operate a low-level radioactive waste disposal facility within each non-sited compact region or within each non-member State. (E) The Nuclear Regulatory Commission shall transmit any certification received under subparagraph (C) to the Congress and publish any such certification in the Federal Register. (F) Any State may, subject to all applica- ble provisions, if any, of any applicable com- pact, enter into an agreement with the com- pact commission of a region in which a re- gional disposal facility is located to provide for the disposal of all low-level radioactive waste generated within such State, and, by virtue of such agreement, may, with the ap- proval of the State in which the regional dis- posal facility is located, be deemed to be in compliance with subparagraphs (A), (B), (C), and (D). (2) Penalties for failure to comply (A) By July 1, 1986 If any State fails to comply with subpara- graph (1)(A)— (i) any generator of low-level radioactive waste within such region or non-member State shall, for the period beginning July 1, 1986, and ending December 31, 1986, be charged 2 times the surcharge otherwise applicable under subsection (d); and Page 5386 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021e (ii) on or after January 1, 1987, any low- level radioactive waste generated within such region or non-member State may be denied access to the regional disposal fa- cilities referred to in paragraphs (1) through (3) of subsection (b). (B) By January 1, 1988 If any non-sited compact region or non- member State fails to comply with para- graph (1)(B)— (i) any generator of low-level radioactive waste within such region or non-member State shall— (I) for the period beginning January 1, 1988, and ending June 30, 1988, be charged 2 times the surcharge otherwise applica- ble under subsection (d); and (II) for the period beginning July 1, 1988, and ending December 31, 1988, be charged 4 times the surcharge otherwise applicable under subsection (d); and (ii) on or after January 1, 1989, any low- level radioactive waste generated within such region or non-member State may be denied access to the regional disposal fa- cilities referred to in paragraphs (1) through (3) of subsection (b). (C) By January 1, 1990 If any non-sited compact region or non- member State fails to comply with para- graph (1)(C), any low-level radioactive waste generated within such region or non-member State may be denied access to the regional disposal facilities referred to in paragraphs (1) through (3) of subsection (b). (D) By January 1, 1992 If any non-sited compact region or non- member State fails to comply with para- graph (1)(D), any generator of low-level ra- dioactive waste within such region or non- member State shall, for the period beginning January 1, 1992 and ending upon the filing of the application described in paragraph (1)(D), be charged 3 times the surcharge oth- erwise applicable under subsection (d). (3) Denial of access No denial or suspension of access to a re- gional disposal facility under paragraph (2) may be based on the source, class, or type of low-level radioactive waste. (4) Restoration of suspended access; penalties for failure to comply Any access to a regional disposal facility that is suspended under paragraph (2) shall be restored after the non-sited compact region or non-member State involved complies with such requirement. Any payment of surcharge penalties pursuant to paragraph (2) for failure to comply with the requirements of this sub- section shall be terminated after the non-sited compact region or non-member State involved complies with such requirements. (f) Monitoring of compliance and denial of access to non-Federal facilities for noncompliance; information requirements of certain States; proprietary information (1) Administration Each State and compact commission in which a regional disposal facility referred to in paragraphs (1) through (3) of subsection (b) is located shall have authority— (A) to monitor compliance with the limita- tions, allocations, and requirements estab- lished in this section; and (B) to deny access to any non-Federal low- level radioactive waste disposal facilities within its borders to any low-level radio- active waste that— (i) is in excess of the limitations or allo- cations established in this section; or (ii) is not required to be accepted due to the failure of a compact region or State to comply with the requirements of sub- section (e)(1). (2) Availability of information during interim access period (A) The States of South Carolina, Wash- ington, and Nevada may require information from disposal facility operators, generators, intermediate handlers, and the Department of Energy that is reasonably necessary to mon- itor the availability of disposal capacity, the use and assignment of allocations and the ap- plicability of surcharges. (B) The States of South Carolina, Wash- ington, and Nevada may, after written notice followed by a period of at least 30 days, deny access to disposal capacity to any generator or intermediate handler who fails to provide in- formation under subparagraph (A). (C) PROPRIETARY INFORMATION.— (i) Trade secrets, proprietary and other confidential information shall be made available to a State under this subsection upon request only if such State— (I) consents in writing to restrict the dis- semination of the information to those who are directly involved in monitoring under subparagraph (A) and who have a need to know; (II) accepts liability for wrongful disclo- sure; and (III) demonstrates that such information is essential to such monitoring. (ii) The United States shall not be liable for the wrongful disclosure by any individual or State of any information provided to such individual or State under this subsection. (iii) Whenever any individual or State has obtained possession of information under this subsection, the individual shall be sub- ject to the same provisions of law with re- spect to the disclosure of such information as would apply to an officer or employee of the United States or of any department or agency thereof and the State shall be sub- ject to the same provisions of law with re- spect to the disclosure of such information as would apply to the United States or any department or agency thereof. No State or State officer or employee who receives trade secrets, proprietary information, or other confidential information under sections 2021b to 2021j of this title may be required to disclose such information under State law. (g) Nondiscrimination Except as provided in subsections (b) through (e), low-level radioactive waste disposed of Page 5387 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2021f under this section shall be subject without dis- crimination to all applicable legal requirements of the compact region and State in which the disposal facility is located as if such low-level radioactive waste were generated within such compact region. (Pub. L. 96–573, § 5, as added Pub. L. 99–240, title I, § 102, Jan. 15, 1986, 99 Stat. 1846.) Editorial Notes CODIFICATION Section was enacted as part of the Low-Level Radio- active Waste Policy Act, and not as part of the Atomic Energy Act of 1954 which comprises this chapter. CONSTITUTIONALITY For constitutionality of section 102 of Pub. L. 99–240, see note under section 2021b of this title. § 2021f. Emergency access (a) In general The Nuclear Regulatory Commission may grant emergency access to any regional disposal facility or non-Federal disposal facility within a State that is not a member of a compact for spe- cific low-level radioactive waste, if necessary to eliminate an immediate and serious threat to the public health and safety or the common de- fense and security. The procedure for granting emergency access shall be as provided in this section. (b) Request for emergency access Any generator of low-level radioactive waste, or any Governor (or, for any State without a Governor, the chief executive officer of the State) on behalf of any generator or generators located in his or her State, may request that the Nuclear Regulatory Commission grant emer- gency access to a regional disposal facility or a non-Federal disposal facility within a State that is not a member of a compact for specific low- level radioactive waste. Any such request shall contain any information and certifications the Nuclear Regulatory Commission may require. (c) Determination of Nuclear Regulatory Com- mission (1) Required determination Not later than 45 days after receiving a re- quest under subsection (b), the Nuclear Regu- latory Commission shall determine whether— (A) emergency access is necessary because of an immediate and serious threat to the public health and safety or the common de- fense and security; and (B) the threat cannot be mitigated by any alternative consistent with the public health and safety, including storage of low-level ra- dioactive waste at the site of generation or in a storage facility obtaining access to a disposal facility by voluntary agreement, purchasing disposal capacity available for assignment pursuant to section 2021e(c) of this title or ceasing activities that generate low-level radioactive waste. (2) Required notification If the Nuclear Regulatory Commission makes the determinations required in para- graph (1) in the affirmative, it shall designate an appropriate non-Federal disposal facility or facilities, and notify the Governor (or chief ex- ecutive officer) of the State in which such fa- cility is located and the appropriate compact commission that emergency access is required. Such notification shall specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration, not ex- ceeding 180 days, necessary to alleviate the immediate threat to public health and safety or the common defense and security. The Nu- clear Regulatory Commission shall also notify the Governor (or chief executive officer) of the State in which the low-level radioactive waste requiring emergency access was generated that emergency access has been granted and that, pursuant to subsection (e), no extension of emergency access may be granted absent diligent State action during the period of the initial grant. (d) Temporary emergency access Upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the Nuclear Regu- latory Commission may at its discretion grant temporary emergency access, pending its deter- mination whether the threat could be mitigated by any alternative consistent with the public health and safety. In granting access under this subsection, the Nuclear Regulatory Commission shall provide the same notification and informa- tion required under subsection (c). Absent a de- termination that no alternative consistent with the public health and safety would mitigate the threat, access granted under this subsection shall expire 45 days after the granting of tem- porary emergency access under this subsection. (e) Extension of emergency access The Nuclear Regulatory Commission may grant one extension of emergency access beyond the period provided in subsection (c), if it deter- mines that emergency access continues to be necessary because of an immediate and serious threat to the public health and safety or the common defense and security that cannot be mitigated by any alternative consistent with the public health and safety, and that the gener- ator of low-level radioactive waste granted emergency access and the State in which such low-level radioactive waste was generated have diligently though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access. Any extension grant- ed under this subsection shall be for the min- imum volume and duration the Nuclear Regu- latory Commission finds necessary to eliminate the immediate threat to public health and safe- ty or the common defense and security, and shall not in any event exceed 180 days. (f) Reciprocal access Any compact region or State not a member of a compact that provides emergency access to non-Federal disposal facilities within its borders shall be entitled to reciprocal access to any sub- sequently operating non-Federal disposal facil- ity that serves the State or compact region in