42 U.S.C. § 10134 — Site approval and construction author-

Page 7982 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10134 3 So in original. The word ‘‘to’’ probably should not appear. (F) report to Congress not later than 6 months after such determination the Sec- retary’s recommendations for further action to assure the safe, permanent disposal of spent nuclear fuel and high-level radioactive waste, including the need for new legislative author- ity. (d) Preliminary activities Each activity of the Secretary under this sec- tion that is in compliance with the provisions of subsection (c) shall be considered a preliminary decisionmaking activity. No such activity shall require the preparation of an environmental im- pact statement under section 102(2)(C) of the Na- tional Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or to 3 require any environ- mental review under subparagraph (E) or (F) of section 102(2) of such Act. (Pub. L. 97–425, title I, § 113, Jan. 7, 1983, 96 Stat. 2211; 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(e)–(g), Dec. 22, 1987, 101 Stat. 1330–228.) Editorial Notes REFERENCES IN TEXT Subsection (b)(1), referred to in subsec. (a), probably means subsec. (b)(1) of section 10132 of this title, which relates to nomination of repository sites for radio- active waste and submission of environmental assess- ments for those sites. The National Environmental Policy Act of 1969, re- ferred to in subsec. (c)(1), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of this title and Tables. AMENDMENTS 1987—Subsec. (a). Pub. L. 100–202 and Pub. L. 100–203, § 5011(e)(2), which contained identical amendments di- recting that ‘‘at the Yucca Mountain site’’ be sub- stituted for ‘‘beginning’’ and all that follows through ‘‘geological media’’, were executed by substituting ‘‘at the Yucca Mountain site’’ for ‘‘beginning with the can- didate sites that have been approved under section 10132 of this title and are located in various geologic media’’ as the probable intent of Congress. Pub. L. 100–202 and Pub. L. 100–203, § 5011(e)(1), amend- ed subsec. (a) identically, substituting ‘‘State of Ne- vada’’ for ‘‘State involved or the governing body of the affected Indian tribe involved’’. Subsec. (b)(1). Pub. L. 100–202 and Pub. L. 100–203, § 5011(f)(1), amended par. (1) identically, substituting ‘‘the Yucca Mountain site’’ for ‘‘any candidate site’’ and ‘‘the Governor or legislature of the State of Ne- vada’’ for ‘‘either the Governor and legislature of the State in which such candidate site is located, or the governing body of the affected Indian tribe on whose reservation such candidate site is located, as the case may be’’. Subsec. (b)(2). Pub. L. 100–202 and Pub. L. 100–203, § 5011(f)(2), amended par. (2) identically, substituting ‘‘the Yucca Mountain site’’ for ‘‘any candidate site’’. Subsec. (b)(3). Pub. L. 100–202 and Pub. L. 100–203, § 5011(f)(3), amended par. (3) identically, substituting ‘‘the Yucca Mountain site’’ for ‘‘a candidate site’’, striking ‘‘either’’ before ‘‘the Governor’’, and sub- stituting ‘‘the State of Nevada’’ for ‘‘the State in which such candidate site is located, or the governing body of the affected Indian tribe where such candidate site is located, as the case may be’’. Subsec. (c)(1). Pub. L. 100–202 and Pub. L. 100–203, § 5011(g)(1), amended par. (1) identically, substituting ‘‘the Yucca Mountain site’’ for ‘‘any candidate site’’, ‘‘suitability of such site’’ for ‘‘suitability of such can- didate site’’, and ‘‘repository at such site’’ for ‘‘reposi- tory at such candidate site’’. Subsec. (c)(2). Pub. L. 100–202 and Pub. L. 100–203, § 5011(g)(2), amended par. (2) identically, striking out ‘‘candidate’’ before ‘‘site’’ in two places in subpar. (A) and in two places in subpar. (B). Subsec. (c)(3), (4). Pub. L. 100–202 and Pub. L. 100–203, § 5011(g)(3), amended subsec. (c) identically, adding par. (3) and striking out former pars. (3) and (4) which read as follows: ‘‘(3) If site characterization activities are terminated at a candidate site for any reason, the Secretary shall (A) notify the Congress, the Governors and legislatures of all States in which candidate sites are located, and the governing bodies of all affected Indian tribes where candidate sites are located, of such termination and the reasons for such termination; and (B) remove any high- level radioactive waste, spent nuclear fuel, or other ra- dioactive materials at or in such candidate site as promptly as practicable. ‘‘(4) If a site is determined to be unsuitable for appli- cation for a construction authorization for a reposi- tory, the Secretary shall take reasonable and necessary steps to reclaim the site and to mitigate any signifi- cant adverse environmental impacts caused by site characterization activities.’’ § 10134. Site approval and construction author- ization (a) Hearings and Presidential recommendation (1) The Secretary shall hold public hearings in the vicinity of the Yucca Mountain site, for the purposes of informing the residents of the area of such consideration and receiving their com- ments regarding the possible recommendation of such site. If, upon completion of such hearings and completion of site characterization activi- ties at the Yucca Mountain site, under section 10133 of this title, the Secretary decides to rec- ommend approval of such site to the President, the Secretary shall notify the Governor and leg- islature of the State of Nevada, of such decision. No sooner than the expiration of the 30-day pe- riod following such notification, the Secretary shall submit to the President a recommendation that the President approve such site for the de- velopment of a repository. Any such rec- ommendation by the Secretary shall be based on the record of information developed by the Sec- retary under section 10133 of this title and this section, including the information described in subparagraph (A) through subparagraph (G). To- gether with any recommendation of a site under this paragraph, the Secretary shall make avail- able to the public, and submit to the President, a comprehensive statement of the basis of such recommendation, including the following: (A) a description of the proposed repository, including preliminary engineering specifica- tions for the facility; (B) a description of the waste form or pack- aging proposed for use at such repository, and an explanation of the relationship between such waste form or packaging and the geologic medium of such site; (C) a discussion of data, obtained in site characterization activities, relating to the safety of such site; (D) a final environmental impact statement prepared for the Yucca Mountain site pursuant Page 7983 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10134 1 So in original. The word ‘‘to’’ probably should not appear. to subsection (f) and the National Environ- mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), together with comments made con- cerning such environmental impact statement by the Secretary of the Interior, the Council on Environmental Quality, the Administrator, and the Commission, except that the Sec- retary shall not be required in any such envi- ronmental impact statement to consider the need for a repository, the alternatives to geo- logical disposal, or alternative sites to the Yucca Mountain site; (E) preliminary comments of the Commis- sion concerning the extent to which the at- depth site characterization analysis and the waste form proposal for such site seem to be sufficient for inclusion in any application to be submitted by the Secretary for licensing of such site as a repository; (F) the views and comments of the Governor and legislature of any State, or the governing body of any affected Indian tribe, as deter- mined by the Secretary, together with the re- sponse of the Secretary to such views; (G) such other information as the Secretary considers appropriate; and (H) any impact report submitted under sec- tion 10136(c)(2)(B) of this title by the State of Nevada. (2)(A) If, after recommendation by the Sec- retary, the President considers the Yucca Moun- tain site qualified for application for a construc- tion authorization for a repository, the Presi- dent shall submit a recommendation of such site to Congress. (B) The President shall submit with such rec- ommendation a copy of the statement for such site prepared by the Secretary under paragraph (1). (3)(A) The President may not recommend the approval of the Yucca Mountain site unless the Secretary has recommended to the President under paragraph (1) approval of such site and has submitted to the President a statement for such site as required under such paragraph. (B) No recommendation of a site by the Presi- dent under this subsection shall require the preparation of an environmental impact state- ment under section 102(2)(C) of the National En- vironmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or to 1 require any environmental re- view under subparagraph (E) or (F) of section 102(2) of such Act. (b) Submission of application If the President recommends to the Congress the Yucca Mountain site under subsection (a) and the site designation is permitted to take ef- fect under section 10135 of this title, the Sec- retary shall submit to the Commission an appli- cation for a construction authorization for a re- pository at such site not later than 90 days after the date on which the recommendation of the site designation is effective under such section and shall provide to the Governor and legisla- ture of the State of Nevada a copy of such appli- cation. (c) Status report on application Not later than 1 year after the date on which an application for a construction authorization is submitted under subsection (b), and annually thereafter until the date on which such author- ization is granted, the Commission shall submit a report to the Congress describing the pro- ceedings undertaken through the date of such report with regard to such application, includ- ing a description of— (1) any major unresolved safety issues, and the explanation of the Secretary with respect to design and operation plans for resolving such issues; (2) any matters of contention regarding such application; and (3) any Commission actions regarding the granting or denial of such authorization. (d) Commission action The Commission shall consider an application for a construction authorization for all or part of a repository in accordance with the laws ap- plicable to such applications, except that the Commission shall issue a final decision approv- ing or disapproving the issuance of a construc- tion authorization not later than the expiration of 3 years after the date of the submission of such application, except that the Commission may extend such deadline by not more than 12 months if, not less than 30 days before such deadline, the Commission complies with the re- porting requirements established in subsection (e)(2). The Commission decision approving the first such application shall prohibit the em- placement in the first repository of a quantity of spent fuel containing in excess of 70,000 met- ric tons of heavy metal or a quantity of solidi- fied high-level radioactive waste resulting from the reprocessing of such a quantity of spent fuel until such time as a second repository is in oper- ation. In the event that a monitored retrievable storage facility, approved pursuant to part C of this subchapter, shall be located, or is planned to be located, within 50 miles of the first reposi- tory, then the Commission decision approving the first such application shall prohibit the em- placement of a quantity of spent fuel containing in excess of 70,000 metric tons of heavy metal or a quantity of solidified high-level radioactive waste resulting from the reprocessing of spent fuel in both the repository and monitored re- trievable storage facility until such time as a second repository is in operation. (e) Project decision schedule (1) The Secretary shall prepare and update, as appropriate, in cooperation with all affected Federal agencies, a project decision schedule that portrays the optimum way to attain the op- eration of the repository, within the time peri- ods specified in this part. Such schedule shall in- clude a description of objectives and a sequence of deadlines for all Federal agencies required to take action, including an identification of the activities in which a delay in the start, or com- pletion, of such activities will cause a delay in beginning repository operation. (2) Any Federal agency that determines that it cannot comply with any deadline in the project decision schedule, or fails to so comply, shall submit to the Secretary and to the Congress a written report explaining the reason for its fail- ure or expected failure to meet such deadline, the reason why such agency could not reach an Page 7984 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10134 agreement with the Secretary, the estimated time for completion of the activity or activities involved, the associated effect on its other dead- lines in the project decision schedule, and any recommendations it may have or actions it in- tends to take regarding any improvements in its operation or organization, or changes to its stat- utory directives or authority, so that it will be able to mitigate the delay involved. The Sec- retary, within 30 days after receiving any such report, shall file with the Congress his response to such report, including the reasons why the Secretary could not amend the project decision schedule to accommodate the Federal agency in- volved. (f) Environmental impact statement (1) Any recommendation made by the Sec- retary under this section shall be considered a major Federal action significantly affecting the quality of the human environment for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). A final environ- mental impact statement prepared by the Sec- retary under such Act shall accompany any rec- ommendation to the President to approve a site for a repository. (2) With respect to the requirements imposed by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), compliance with the procedures and requirements of this chapter shall be deemed adequate consideration of the need for a repository, the time of the initial availability of a repository, and all alternatives to the isolation of high-level radioactive waste and spent nuclear fuel in a repository. (3) For purposes of complying with the re- quirements of the National Environmental Pol- icy Act of 1969 (42 U.S.C. 4321 et seq.) and this section, the Secretary need not consider alter- nate sites to the Yucca Mountain site for the re- pository to be developed under this part. (4) Any environmental impact statement pre- pared in connection with a repository proposed to be constructed by the Secretary under this part shall, to the extent practicable, be adopted by the Commission in connection with the issuance by the Commission of a construction authorization and license for such repository. To the extent such statement is adopted by the Commission, such adoption shall be deemed to also satisfy the responsibilities of the Commis- sion under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and no further consideration shall be required, except that nothing in this subsection shall affect any inde- pendent responsibilities of the Commission to protect the public health and safety under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). (5) Nothing in this chapter shall be construed to amend or otherwise detract from the licens- ing requirements of the Nuclear Regulatory Commission established in title II of the Energy Reorganization Act of 1974 (42 U.S.C. 5841 et seq.). (6) In any such statement prepared with re- spect to the repository to be constructed under this part, the Nuclear Regulatory Commission need not consider the need for a repository, the time of initial availability of a repository, alter- nate sites to the Yucca Mountain site, or non- geologic alternatives to such site. (Pub. L. 97–425, title I, § 114, Jan. 7, 1983, 96 Stat. 2213; 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(h)–(l), Dec. 22, 1987, 101 Stat. 1330–229, 1330–230.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsecs. (a)(1)(D) and (f), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of this title and Tables. The Atomic Energy Act of 1954, referred to in subsec. (f)(4), 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. (f)(5), is Pub. L. 93–438, Oct. 11, 1974, 88 Stat. 1233. Title II of the Energy Reorganization Act of 1974 is classified generally to subchapter II (§ 5841 et seq.) of chapter 73 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. AMENDMENTS 1987—Subsec. (a)(1). Pub. L. 100–202 and Pub. L. 100–203, § 5011(h)(1)(A)–(E), amended par. (1) identically, in introductory provisions substituting ‘‘vicinity of the Yucca Mountain site’’ for ‘‘vicinity of each site under consideration for recommendation to the President under this paragraph as a site for the development of a repository’’, striking out ‘‘in which such site is lo- cated’’ after ‘‘residents of the area’’, substituting ‘‘ac- tivities at the Yucca Mountain site’’ for ‘‘activities at not less than 3 candidate sites for the first proposed re- pository, or from all of the characterized sites for the development of subsequent respositories’’ [sic] and ‘‘of Nevada’’ for ‘‘in which such site is located, or the gov- erning body of the affected Indian tribe where such site is located, as the case may be’’, and struck out before last sentence ‘‘In making site recommendations and approvals subsequent to the first site recommendation, the Secretary and the President, respectively, shall also consider the need for regional distribution of re- positories and the need to minimize, to the extent prac- ticable, the impacts and cost of transporting spent fuel and solidified high-level radioactive waste.’’ Subsec. (a)(1)(D). Pub. L. 100–202 and Pub. L. 100–203, § 5011(h)(1)(F), generally amended subpar. (D) identi- cally. Prior to amendment, subpar. (D) read as follows: ‘‘a final environmental impact statement prepared pur- suant to subsection (f) of this section and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), including an analysis of the consideration given by the Secretary to not less than 3 candidate sites for the first proposed respository [sic] or to all of the char- acterized sites for the development of subsequent re- positories, with respect to which site characterization is completed under section 10133 of this title, together with comments made concerning such environmental impact statement by the Secretary of the Interior, the Council on Environmental Quality, the Administrator, and the Commission, except that any such environ- mental impact statement concerning the first reposi- tory to be developed under this chapter shall not be re- quired to consider the need for a repository or the al- ternatives to geologic disposal;’’. Subsec. (a)(1)(H). Pub. L. 100–202 and Pub. L. 100–203, § 5011(h)(1)(G), amended subpar. (H) identically, sub- stituting ‘‘the State of Nevada’’ for ‘‘the State in which Page 7985 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10135 such site is located, or under section 10138(b)(3)(B) of this title by the affected Indian tribe where such site is located, as the case may be’’. Subsec. (a)(2). Pub. L. 100–202 and Pub. L. 100–203, § 5011(h)(2), amended subsec. (a) identically, adding par. (2) and striking out former par. (2) which required sub- mission of recommendation of one site for repository not later than Mar. 31, 1987, and recommendation of second site not later than Mar. 31, 1990, and permitted subsequent recommendations for other sites and exten- sion of deadlines. Subsec. (a)(3), (4). Pub. L. 100–202 and Pub. L. 100–203, § 5011(h)(2), (3), amended subsec. (a) identically, redesig- nating par. (4) as (3), in subpar. (A), substituting ‘‘the Yucca Mountain site’’ for ‘‘any site under this sub- section’’ and ‘‘statement’’ for ‘‘report’’, and striking out former par. (3) which read as follows: ‘‘If approval of any such site recommendation does not take effect as a result of a disapproval by the Governor or legisla- ture of a State under section 10136 of this title or the governing body of an affected Indian tribe under sec- tion 10138 of this title, the President shall submit to the Congress, not later than 1 year after the dis- approval of such recommendation, a recommendation of another site for the first or subsequent repository.’’ Subsec. (b). Pub. L. 100–202 and Pub. L. 100–203, § 5011(i), amended subsec. (b) identically, substituting ‘‘the Yucca Mountain site’’ for ‘‘a site for a repository’’ and ‘‘State of Nevada’’ for ‘‘State in which such site is located, or the governing body of the affected Indian tribe where such site is located, as the case may be,’’. Subsec. (d). Pub. L. 100–202 and Pub. L. 100–203, § 5011(j), amended subsec. (d) identically, substituting ‘‘than the expiration’’ for ‘‘than— (1) January 1, 1989, for the first such application, and January 1, 1992 for the second such application; or (2) the expiration’’ and ‘‘subsection (e)(2)’’ for ‘‘subsection (e)(2); whichever oc- curs later’’. Subsec. (e)(1). Pub. L. 100–202 and Pub. L. 100–203, § 5011(k), amended par. (1) identically, substituting ‘‘op- eration of the repository’’ for ‘‘operation of the reposi- tory involved’’. Subsec. (f). Pub. L. 100–202 and Pub. L. 100–203, § 5011(l), generally amended subsec. (f) identically, sub- stituting provisions consisting of pars. (1) to (6) for former provisions consisting of single unnumbered par. 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 a report required under subsec. (c) of this section is listed as the 17th item on page 186), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. VIABILITY ASSESSMENT OF YUCCA MOUNTAIN SITE Pub. L. 104–206, title III, Sept. 30, 1996, 110 Stat. 2995, provided in part: ‘‘That no later than September 30, 1998, the Secretary shall provide to the President and to the Congress a viability assessment of the Yucca Mountain site. The viability assessment shall include: ‘‘(1) the preliminary design concept for the critical elements for the repository and waste package; ‘‘(2) a total system performance assessment, based upon the design concept and the scientific data and analysis available by September 30, 1998, describing the probable behavior of the repository in the Yucca Mountain geological setting relative to the overall system performance standards; ‘‘(3) a plan and cost estimate for the remaining work required to complete a license application; and ‘‘(4) an estimate of the costs to construct and oper- ate the repository in accordance with the design con- cept.’’ § 10135. Review of repository site selection (a) ‘‘Resolution of repository siting approval’’ de- fined For purposes of this section, the term ‘‘resolu- tion of repository siting approval’’ means a joint resolution of the Congress, the matter after the resolving clause of which is as follows: ‘‘That there hereby is approved the site at .......... for a repository, with respect to which a notice of dis- approval was submitted by .......... on ...........’’. The first blank space in such resolution shall be filled with the name of the geographic location of the proposed site of the repository to which such resolution pertains; the second blank space in such resolution shall be filled with the des- ignation of the State Governor and legislature or Indian tribe governing body submitting the notice of disapproval to which such resolution pertains; and the last blank space in such reso- lution shall be filled with the date of such sub- mission. (b) State or Indian tribe petitions The designation of a site as suitable for appli- cation for a construction authorization for a re- pository shall be effective at the end of the 60- day period beginning on the date that the Presi- dent recommends such site to the Congress under section 10134 of this title, unless the Gov- ernor and legislature of the State in which such site is located, or the governing body of an In- dian tribe on whose reservation such site is lo- cated, as the case may be, has submitted to the Congress a notice of disapproval under section 10136 or 10138 of this title. If any such notice of disapproval has been submitted, the designation of such site shall not be effective except as pro- vided under subsection (c). (c) Congressional review of petitions If any notice of disapproval of a repository site designation has been submitted to the Con- gress under section 10136 or 10138 of this title after a recommendation for approval of such site is made by the President under section 10134 of this title, such site shall be disapproved unless, during the first period of 90 calendar days of continuous session of the Congress after the date of the receipt by the Congress of such no- tice of disapproval, the Congress passes a resolu- tion of repository siting approval in accordance with this subsection approving such site, and such resolution thereafter becomes law. (d) Procedures applicable to Senate (1) The provisions of this subsection are en- acted by the Congress— (A) as an exercise of the rulemaking power of the Senate, and as such they are deemed a part of the rules of the Senate, but applicable only with respect to the procedure to be fol- lowed in the Senate in the case of resolutions of repository siting approval, and such provi- sions supersede other rules of the Senate only to the extent that they are inconsistent with such other rules; and (B) with full recognition of the constitu- tional right of the Senate to change the rules (so far as relating to the procedure of the Sen- ate) at any time, in the same manner and to the same extent as in the case of any other rule of the Senate.