
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC10134]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 108--NUCLEAR WASTE POLICY
 
  SUBCHAPTER I--DISPOSAL AND STORAGE OF HIGH-LEVEL RADIOACTIVE WASTE, 
           SPENT NUCLEAR FUEL, AND LOW-LEVEL RADIOACTIVE WASTE
 
 Part A--Repositories for Disposal of High-Level Radioactive Waste and 
                           Spent Nuclear Fuel
 
Sec. 10134. Site approval and construction authorization


(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 comments regarding the 
possible recommendation of such site. If, upon completion of such 
hearings and completion of site characterization activities at the Yucca 
Mountain site, under section 10133 of this title, the Secretary decides 
to recommend approval of such site to the President, the Secretary shall 
notify the Governor and legislature of the State of Nevada, of such 
decision. No sooner than the expiration of the 30-day period following 
such notification, the Secretary shall submit to the President a 
recommendation that the President approve such site for the development 
of a repository. Any such recommendation by the Secretary shall be based 
on the record of information developed by the Secretary under section 
10133 of this title and this section, including the information 
described in subparagraph (A) through subparagraph (G). Together with 
any recommendation of a site under this paragraph, the Secretary shall 
make available 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 specifications for the facility;
        (B) a description of the waste form or packaging 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 to subsection (f) of this section and 
    the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
    seq.), 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 the Secretary shall not be required in any such environmental 
    impact statement to consider the need for a repository, the 
    alternatives to geological disposal, or alternative sites to the 
    Yucca Mountain site;
        (E) preliminary comments of the Commission 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 
    determined by the Secretary, together with the response of the 
    Secretary to such views;
        (G) such other information as the Secretary considers 
    appropriate; and
        (H) any impact report submitted under section 10136(c)(2)(B) of 
    this title by the State of Nevada.

    (2)(A) If, after recommendation by the Secretary, the President 
considers the Yucca Mountain site qualified for application for a 
construction authorization for a repository, the President shall submit 
a recommendation of such site to Congress.
    (B) The President shall submit with such recommendation 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 President under this 
subsection shall require 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)), or to \1\ require any environmental 
review under subparagraph (E) or (F) of section 102(2) of such Act.
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    \1\ So in original. The word ``to'' probably should not appear.
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(b) Submission of application

    If the President recommends to the Congress the Yucca Mountain site 
under subsection (a) of this section and the site designation is 
permitted to take effect under section 10135 of this title, the 
Secretary shall submit to the Commission an application for a 
construction authorization for a repository 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 legislature of the State of Nevada a copy of such 
application.

(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) of this 
section, and annually thereafter until the date on which such 
authorization is granted, the Commission shall submit a report to the 
Congress describing the proceedings undertaken through the date of such 
report with regard to such application, including 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 applicable to such applications, except that the Commission shall 
issue a final decision approving or disapproving the issuance of a 
construction 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 
reporting requirements established in subsection (e)(2) of this section. 
The Commission decision approving the first such application shall 
prohibit the emplacement in the first repository 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 such a quantity of spent fuel until such time as a 
second repository is in operation. 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 repository, then the Commission decision approving 
the first such application shall prohibit the emplacement 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 
retrievable 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 operation of the 
repository, within the time periods specified in this part. Such 
schedule shall include 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 
completion, 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 failure or expected failure to meet such 
deadline, the reason why such agency could not reach an agreement with 
the Secretary, the estimated time for completion of the activity or 
activities involved, the associated effect on its other deadlines in the 
project decision schedule, and any recommendations it may have or 
actions it intends to take regarding any improvements in its operation 
or organization, or changes to its statutory directives or authority, so 
that it will be able to mitigate the delay involved. The Secretary, 
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 involved.

(f) Environmental impact statement

    (1) Any recommendation made by the Secretary 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 
environmental impact statement prepared by the Secretary under such Act 
shall accompany any recommendation 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 requirements of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and this 
section, the Secretary need not consider alternate sites to the Yucca 
Mountain site for the repository to be developed under this part.
    (4) Any environmental impact statement prepared 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 Commission 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 independent 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 licensing 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 respect 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, alternate sites to the Yucca Mountain site, or 
nongeologic alternatives to such site.

(Pub. L. 97-425, title I, Sec. 114, Jan. 7, 1983, 96 Stat. 2213; Pub. L. 
100-202, Sec. 101(d) [title III, Sec. 300], Dec. 22, 1987, 101 Stat. 
1329-104, 1329-121; Pub. L. 100-203, title V, Sec. 5011(h)-(l), Dec. 22, 
1987, 101 Stat. 1330-229, 1330-230.)

                       References in Text

    The National Environmental Policy Act of 1969, referred to in 
subsecs. (a)(1)(D) and (f), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 
852, as amended, which is classified generally to chapter 55 (Sec. 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, Sec. 1, 
68 Stat. 921, and amended, which is classified generally to chapter 23 
(Sec. 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, as amended. 
Title II of the Energy Reorganization Act of 1974 is classified 
generally to subchapter II (Sec. 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, 
Sec. 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 located'' after 
``residents of the area'', substituting ``activities at the Yucca 
Mountain site'' for ``activities at not less than 3 candidate sites for 
the first proposed repository, 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 governing 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 repositories and the 
need to minimize, to the extent practicable, 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, 
Sec. 5011(h)(1)(F), generally amended subpar. (D) identically. Prior to 
amendment, subpar. (D) read as follows: ``a final environmental impact 
statement prepared pursuant 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 characterized sites for the development of subsequent 
repositories, 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 environmental impact statement 
concerning the first repository to be developed under this chapter shall 
not be required to consider the need for a repository or the 
alternatives to geologic disposal;''.
    Subsec. (a)(1)(H). Pub. L. 100-202 and Pub. L. 100-203, 
Sec. 5011(h)(1)(G), amended subpar. (H) identically, substituting ``the 
State of Nevada'' for ``the State in which 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, 
Sec. 5011(h)(2), amended subsec. (a) identically, adding par. (2) and 
striking out former par. (2) which required submission 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 extension of 
deadlines.
    Subsec. (a)(3), (4). Pub. L. 100-202 and Pub. L. 100-203, 
Sec. 5011(h)(2), (3), amended subsec. (a) identically, redesignating 
par. (4) as (3), in subpar. (A), substituting ``the Yucca Mountain 
site'' for ``any site under this subsection'' 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 legislature of a State under 
section 10136 of this title or the governing body of an affected Indian 
tribe under section 10138 of this title, the President shall submit to 
the Congress, not later than 1 year after the disapproval 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, Sec. 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, Sec. 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) of this section'' for ``subsection (e)(2) of 
this section; whichever occurs later''.
    Subsec. (e)(1). Pub. L. 100-202 and Pub. L. 100-203, Sec. 5011(k), 
amended par. (1) identically, substituting ``operation of the 
repository'' for ``operation of the repository involved''.
    Subsec. (f). Pub. L. 100-202 and Pub. L. 100-203, Sec. 5011(l), 
generally amended subsec. (f) identically, substituting provisions 
consisting of pars. (1) to (6) for former provisions consisting of 
single unnumbered par.


               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 operate the 
    repository in accordance with the design concept.''

                  Section Referred to in Other Sections

    This section is referred to in sections 10135, 10136, 10138, 10142, 
10165 of this title.
