42 U.S.C. § 10155 — Storage of spent nuclear fuel

Page 7995 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10155 1 So in original. Probably should be preceded by ‘‘if’’. 2 So in original. The period probably should be a semicolon. such issue results from any revision of siting or design criteria by the Commission fol- lowing such decision; and (II) the Commis- sion determines that such issue substan- tially affects the design, construction, or op- eration of the facility or activity for which such license application, authorization, or amendment is being considered. (3) The provisions of paragraph (2)(B) shall apply only with respect to licenses, authoriza- tions, or amendments to licenses or authoriza- tions, applied for under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) before December 31, 2005. (4) The provisions of this section shall not apply to the first application for a license or li- cense amendment received by the Commission to expand onsite spent fuel storage capacity by the use of a new technology not previously ap- proved for use at any nuclear powerplant by the Commission. (c) Judicial review No court shall hold unlawful or set aside a de- cision of the Commission in any proceeding de- scribed in subsection (a) because of a failure by the Commission to use a particular procedure pursuant to this section unless— (1) an objection to the procedure used was presented to the Commission in a timely fash- ion or there are extraordinary circumstances that excuse the failure to present a timely ob- jection; and (2) the court finds that such failure has pre- cluded a fair consideration and informed reso- lution of a significant issue of the proceeding taken as a whole. (Pub. L. 97–425, title I, § 134, Jan. 7, 1983, 96 Stat. 2230.) Editorial Notes REFERENCES IN TEXT The Atomic Energy Act of 1954, referred to in subsec. (b)(3), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. § 10155. Storage of spent nuclear fuel (a) Storage capacity (1) Subject to section 10107 of this title, the Secretary shall provide, in accordance with paragraph (5), not more than 1,900 metric tons of capacity for the storage of spent nuclear fuel from civilian nuclear power reactors. Such stor- age capacity shall be provided through any one or more of the following methods, used in any combination determined by the Secretary to be appropriate: (A) use of available capacity at one or more facilities owned by the Federal Government on January 7, 1983, including the modification and expansion of any such facilities, if the Commission determines that such use will adequately protect the public health and safe- ty, except that such use shall not— (i) render such facilities subject to licens- ing under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) or the Energy Reorga- nization Act of 1974 (42 U.S.C. 5801 et seq.); or (ii) except as provided in subsection (c) re- quire the preparation of an environmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), such 1 facility is al- ready being used, or has previously been used, for such storage or for any similar pur- pose.2 (B) acquisition of any modular or mobile spent nuclear fuel storage equipment, includ- ing spent nuclear fuel storage casks, and pro- vision of such equipment, to any person gener- ating or holding title to spent nuclear fuel, at the site of any civilian nuclear power reactor operated by such person or at any site owned by the Federal Government on January 7, 1983; (C) construction of storage capacity at any site of a civilian nuclear power reactor. (2) Storage capacity authorized by paragraph (1) shall not be provided at any Federal or non- Federal site within which there is a candidate site for a repository. The restriction in the pre- ceding sentence shall only apply until such time as the Secretary decides that such candidate site is no longer a candidate site under consider- ation for development as a repository. (3) In selecting methods of providing storage capacity under paragraph (1), the Secretary shall consider the timeliness of the availability of each such method and shall seek to minimize the transportation of spent nuclear fuel, the public health and safety impacts, and the costs of providing such storage capacity. (4) In providing storage capacity through any method described in paragraph (1), the Secretary shall comply with any applicable requirements for licensing or authorization of such method, except as provided in paragraph (1)(A)(i). (5) The Secretary shall ensure that storage ca- pacity is made available under paragraph (1) when needed, as determined on the basis of the storage needs specified in contracts entered into under section 10156(a) of this title, and shall ac- cept upon request any spent nuclear fuel as cov- ered under such contracts. (6) For purposes of paragraph (1)(A), the term ‘‘facility’’ means any building or structure. (b) Contracts (1) Subject to the capacity limitation estab- lished in subsections (a)(1) and (d), the Secretary shall offer to enter into, and may enter into, contracts under section 10156(a) of this title with any person generating or owning spent nuclear fuel for purposes of providing storage capacity for such spent fuel under this section only if the Commission determines that— (A) adequate storage capacity to ensure the continued orderly operation of the civilian nu- clear power reactor at which such spent nu- clear fuel is generated cannot reasonably be provided by the person owning and operating such reactor at such site, or at the site of any other civilian nuclear power reactor operated by such person, and such capacity cannot be Page 7996 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10155 made available in a timely manner through any method described in subparagraph (B); and (B) such person is diligently pursuing li- censed alternatives to the use of Federal stor- age capacity for the storage of spent nuclear fuel expected to be generated by such person in the future, including— (i) expansion of storage facilities at the site of any civilian nuclear power reactor op- erated by such person; (ii) construction of new or additional stor- age facilities at the site of any civilian nu- clear power reactor operated by such person; (iii) acquisition of modular or mobile spent nuclear fuel storage equipment, including spent nuclear fuel storage casks, for use at the site of any civilian nuclear power reac- tor operated by such person; and (iv) transshipment to another civilian nu- clear power reactor owned by such person. (2) In making the determination described in paragraph (1)(A), the Commission shall ensure maintenance of a full core reserve storage capa- bility at the site of the civilian nuclear power reactor involved unless the Commission deter- mines that maintenance of such capability is not necessary for the continued orderly oper- ation of such reactor. (3) The Commission shall complete the deter- minations required in paragraph (1) with respect to any request for storage capacity not later than 6 months after receipt of such request by the Commission. (c) Environmental review (1) The provision of 300 or more metric tons of storage capacity at any one Federal site under subsection (a)(1)(A) shall be considered to be a major Federal action requiring preparation of an environmental impact statement under sec- tion 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). (2)(A) The Secretary shall prepare, and make available to the public, an environmental assess- ment of the probable impacts of any provision of less than 300 metric tons of storage capacity at any one Federal site under subsection (a)(1)(A) that requires the modification or expansion of any facility at the site, and a discussion of al- ternative activities that may be undertaken to avoid such impacts. Such environmental assess- ment shall include— (i) an estimate of the amount of storage ca- pacity to be made available at such site; (ii) an evaluation as to whether the facilities to be used at such site are suitable for the pro- vision of such storage capacity; (iii) a description of activities planned by the Secretary with respect to the modification or expansion of the facilities to be used at such site; (iv) an evaluation of the effects of the provi- sion of such storage capacity at such site on the public health and safety, and the environ- ment; (v) a reasonable comparative evaluation of current information with respect to such site and facilities and other sites and facilities available for the provision of such storage ca- pacity; (vi) a description of any other sites and fa- cilities that have been considered by the Sec- retary for the provision of such storage capac- ity; and (vii) an assessment of the regional and local impacts of providing such storage capacity at such site, including the impacts on transpor- tation. (B) The issuance of any environmental assess- ment under this paragraph shall be considered to be a final agency action subject to judicial re- view in accordance with the provisions of chap- ter 7 of title 5. Such judicial review shall be lim- ited to the sufficiency of such assessment with respect to the items described in clauses (i) through (vii) of subparagraph (A). (3) Judicial review of any environmental im- pact statement or environmental assessment prepared pursuant to this subsection shall be conducted in accordance with the provisions of section 10139 of this title. (d) Review of sites and State participation (1) In carrying out the provisions of this part with regard to any interim storage of spent fuel from civilian nuclear power reactors which the Secretary is authorized by this section to pro- vide, the Secretary shall, as soon as practicable, notify, in writing, the Governor and the State legislature of any State and the Tribal Council of any affected Indian tribe in such State in which is located a potentially acceptable site or facility for such interim storage of spent fuel of his intention to investigate that site or facility. (2) During the course of investigation of such site or facility, the Secretary shall keep the Governor, State legislature, and affected Tribal Council currently informed of the progress of the work, and results of the investigation. At the time of selection by the Secretary of any site or existing facility, but prior to under- taking any site-specific work or alterations, the Secretary shall promptly notify the Governor, the legislature, and any affected Tribal Council in writing of such selection, and subject to the provisions of paragraph (6) of this subsection, shall promptly enter into negotiations with such State and affected Tribal Council to estab- lish a cooperative agreement under which such State and Council shall have the right to par- ticipate in a process of consultation and co- operation, based on public health and safety and environmental concerns, in all stages of the planning, development, modification, expansion, operation, and closure of storage capacity at a site or facility within such State for the interim storage of spent fuel from civilian nuclear power reactors. Public participation in the negotiation of such an agreement shall be provided for and encouraged by the Secretary, the State, and the affected Tribal Council. The Secretary, in co- operation with the States and Indian tribes, shall develop and publish minimum guidelines for public participation in such negotiations, but the adequacy of such guidelines or any fail- ure to comply with such guidelines shall not be a basis for judicial review. (3) The cooperative agreement shall include, but need not be limited to, the sharing in ac- cordance with applicable law of all technical and licensing information, the utilization of avail- able expertise, the facilitating of permitting procedures, joint project review, and the formu- Page 7997 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10155 lation of joint surveillance and monitoring ar- rangements to carry out applicable Federal and State laws. The cooperative agreement also shall include a detailed plan or schedule of mile- stones, decision points and opportunities for State or eligible Tribal Council review and ob- jection. Such cooperative agreement shall pro- vide procedures for negotiating and resolving objections of the State and affected Tribal Coun- cil in any stage of planning, development, modi- fication, expansion, operation, or closure of storage capacity at a site or facility within such State. The terms of any cooperative agreement shall not affect the authority of the Nuclear Regulatory Commission under existing law. (4) For the purpose of this subsection, ‘‘process of consultation and cooperation’’ means a meth- odology by which the Secretary (A) keeps the State and eligible Tribal Council fully and cur- rently informed about the aspects of the project related to any potential impact on the public health and safety and environment; (B) solicits, receives, and evaluates concerns and objections of such State and Council with regard to such aspects of the project on an ongoing basis; and (C) works diligently and cooperatively to re- solve, through arbitration or other appropriate mechanisms, such concerns and objections. The process of consultation and cooperation shall not include the grant of a right to any State or Tribal Council to exercise an absolute veto of any aspect of the planning, development, modi- fication, expansion, or operation of the project. (5) The Secretary and the State and affected Tribal Council shall seek to conclude the agree- ment required by paragraph (2) as soon as prac- ticable, but not later than 180 days following the date of notification of the selection under para- graph (2). The Secretary shall periodically re- port to the Congress thereafter on the status of the agreements approved under paragraph (3). Any report to the Congress on the status of ne- gotiations of such agreement by the Secretary shall be accompanied by comments solicited by the Secretary from the State and eligible Tribal Council. (6)(A) Upon deciding to provide an aggregate of 300 or more metric tons of storage capacity under subsection (a)(1) at any one site, the Sec- retary shall notify the Governor and legislature of the State where such site is located, or the governing body of the Indian tribe in whose res- ervation such site is located, as the case may be, of such decision. During the 60-day period fol- lowing receipt of notification by the Secretary of his decision to provide an aggregate of 300 or more metric tons of storage capacity at any one site, the Governor or legislature of the State in which such site is located, or the governing body of the affected Indian tribe where such site is lo- cated, as the case may be, may disapprove the provision of 300 or more metric tons of storage capacity at the site involved and submit to the Congress a notice of such disapproval. A notice of disapproval shall be considered to be sub- mitted to the Congress on the date of the trans- mittal 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 provision of such storage ca- pacity at such site was disapproved by such Gov- ernor or legislature or the governing body of such Indian tribe. (B) Unless otherwise provided by State law, the Governor or legislature of each State shall have authority to submit a notice of disapproval to the Congress under subparagraph (A). In any case in which State law provides for submission of any such notice of disapproval by any other person or entity, any reference in this part to the Governor or legislature of such State shall be considered to refer instead to such other per- son or entity. (C) The authority of the Governor and legisla- ture of each State under this paragraph shall not be applicable with respect to any site lo- cated on a reservation. (D) If any notice of disapproval is submitted to the Congress under subparagraph (A), the pro- posed provision of 300 or more metric tons of storage capacity at the site involved shall be disapproved unless, during the first period of 90 calendar days of continuous session of the Con- gress following the date of the receipt by the Congress of such notice of disapproval, the Con- gress passes a resolution approving such pro- posed provision of storage capacity in accord- ance with the procedures established in this paragraph and subsections (d) through (f) of sec- tion 10135 of this title and such resolution there- after becomes law. For purposes of this para- graph, the term ‘‘resolution’’ means a joint reso- lution of either House of the Congress, the mat- ter after the resolving clause of which is as fol- lows: ‘‘That there hereby is approved the provi- sion of 300 or more metric tons of spent nuclear fuel storage capacity at the site located at lllllll, with respect to which a notice of disapproval was submitted by lllllll on lllllll.’’. The first blank space in such resolution shall be filled with the geographic lo- cation of the site involved; the second blank space in such resolution shall be filled with the designation of the State Governor and legisla- ture or affected Indian tribe governing body sub- mitting the notice of disapproval involved; and the last blank space in such resolution shall be filled with the date of submission of such notice of disapproval. (E) For purposes of the consideration of any resolution described in subparagraph (D), each reference in subsections (d) and (e) of section 10135 of this title to a resolution of repository siting approval shall be considered to refer to the resolution described in such subparagraph. (7) As used in this section, the term ‘‘affected Tribal Council’’ means the governing body of any Indian tribe within whose reservation boundaries there is located a potentially accept- able site for interim storage capacity of spent nuclear fuel from civilian nuclear power reac- tors, or within whose boundaries a site for such capacity is selected by the Secretary, or whose federally defined possessory or usage rights to other lands outside of the reservation’s bound- aries arising out of congressionally ratified trea- ties, as determined by the Secretary of the Inte- rior pursuant to a petition filed with him by the appropriate governmental officials of such tribe, may be substantially and adversely affected by the establishment of any such storage capacity. Page 7998 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10156 3 See References in Text note below. (e) Limitations Any spent nuclear fuel stored under this sec- tion shall be removed from the storage site or facility involved as soon as practicable, but in any event not later than 3 years following the date on which a repository or monitored retriev- able storage facility developed under this chap- ter is available for disposal of such spent nu- clear fuel. (f) Report The Secretary shall annually prepare and sub- mit to the Congress a report on any plans of the Secretary for providing storage capacity under this section. Such report shall include a descrip- tion of the specific manner of providing such storage selected by the Secretary, if any. The Secretary shall prepare and submit the first such report not later than 1 year after January 7, 1983. (g) Criteria for determining adequacy of avail- able storage capacity Not later than 90 days after January 7, 1983, the Commission pursuant to section 553 of the Administrative Procedures Act [5 U.S.C. 553], shall propose, by rule, procedures and criteria for making the determination required by sub- section (b) that a person owning and operating a civilian nuclear power reactor cannot reason- ably provide adequate spent nuclear fuel storage capacity at the civilian nuclear power reactor site when needed to ensure the continued or- derly operation of such reactor. Such criteria shall ensure the maintenance of a full core re- serve storage capability at the site of such reac- tor unless the Commission determines that maintenance of such capability is not necessary for the continued orderly operation of such reac- tor. Such criteria shall identify the feasibility of reasonably providing such adequate spent nu- clear fuel storage capacity, taking into account economic, technical, regulatory, and public health and safety factors, through the use of high-density fuel storage racks, fuel rod com- paction, transshipment of spent nuclear fuel to another civilian nuclear power reactor within the same utility system, construction of addi- tional spent nuclear fuel pool capacity, or such other technologies as may be approved by the Commission. (h) Application Notwithstanding any other provision of law, nothing in this chapter shall be construed to en- courage, authorize, or require the private or Federal use, purchase, lease, or other acquisi- tion of any storage facility located away from the site of any civilian nuclear power reactor and not owned by the Federal Government on January 7, 1983. (i) Coordination with research and development program To the extent available, and consistent with the provisions of this section, the Secretary shall provide spent nuclear fuel for the research and development program authorized in section 10198 3 of this title from spent nuclear fuel re- ceived by the Secretary for storage under this section. Such spent nuclear fuel shall not be subject to the provisions of subsection (e). (Pub. L. 97–425, title I, § 135, Jan. 7, 1983, 96 Stat. 2232.) Editorial Notes REFERENCES IN TEXT The Atomic Energy Act of 1954, referred to in subsec. (a)(1)(A)(i), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Energy Reorganization Act of 1974, referred to in subsec. (a)(1)(A)(i), is Pub. L. 93–438, Oct. 11, 1974, 88 Stat. 1233, which is classified principally to chapter 73 (§ 5801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5801 of this title and Tables. Section 10198 of this title, referred to in subsec. (i), was in the original a reference to section 217 of Pub. L. 97–425, which is classified to section 10197 of this title, and has been translated as section 10198 of this title as the probable intent of Congress in view of section 10198(c)(2) which directs the Secretary to provide spent nuclear fuel for the research and development program authorized by section 10198(c) of this title from spent nuclear fuel received by the Secretary for storage under section 10155 of this title. Statutory Notes and Related Subsidiaries TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which reports required under subsecs. (d)(5) and (f) of this section are listed as the 12th and 13th items on page 83), see section 3003 of Pub. L. 104–66, as amended, set out as a note under sec- tion 1113 of Title 31, Money and Finance. § 10156. Interim Storage Fund (a) Contracts (1) During the period following January 7, 1983, but not later than January 1, 1990, the Secretary is authorized to enter into contracts with per- sons who generate or own spent nuclear fuel re- sulting from civilian nuclear activities for the storage of such spent nuclear fuel in any storage capacity provided under this part: Provided, how- ever, That the Secretary shall not enter into contracts for spent nuclear fuel in amounts in excess of the available storage capacity speci- fied in section 10155(a) of this title. Those con- tracts shall provide that the Federal Govern- ment will (1) take title at the civilian nuclear power reactor site, to such amounts of spent nu- clear fuel from the civilian nuclear power reac- tor as the Commission determines cannot be stored onsite, (2) transport the spent nuclear fuel to a federally owned and operated interim away-from-reactor storage facility, and (3) store such fuel in the facility pending further proc- essing, storage, or disposal. Each such contract shall (A) provide for payment to the Secretary of fees determined in accordance with the provi- sions of this section; and (B) specify the amount of storage capacity to be provided for the person involved. (2) The Secretary shall undertake a study and, not later than 180 days after January 7, 1983,