
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: 42USC10155]

 
                 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 B--Interim Storage Program
 
Sec. 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 storage 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 safety, except that such use shall not--
            (i) render such facilities subject to licensing under the 
        Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) or the Energy 
        Reorganization Act of 1974 (42 U.S.C. 5801 et seq.); or
            (ii) except as provided in subsection (c) of this section 
        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)), such facility is already being 
        used, or has previously been used, for such storage or for any 
        similar purpose.

        (B) acquisition of any modular or mobile spent nuclear fuel 
    storage equipment, including spent nuclear fuel storage casks, and 
    provision of such equipment, to any person generating 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 preceding 
sentence shall only apply until such time as the Secretary decides that 
such candidate site is no longer a candidate site under consideration 
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 capacity 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 accept upon request any spent nuclear 
fuel as covered 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 established in subsections 
(a)(1) and (d) of this section, 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 nuclear power reactor at which such spent 
    nuclear 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 made available in a timely 
    manner through any method described in subparagraph (B); and
        (B) such person is diligently pursuing licensed alternatives to 
    the use of Federal storage 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 operated by such person;
            (ii) construction of new or additional storage facilities at 
        the site of any civilian nuclear 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 reactor 
        operated by such person; and
            (iv) transshipment to another civilian nuclear 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 
capability at the site of the civilian nuclear power reactor involved 
unless the Commission determines that maintenance of such capability is 
not necessary for the continued orderly operation of such reactor.
    (3) The Commission shall complete the determinations 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) of this section shall be 
considered to be a major Federal action requiring 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)).
    (2)(A) The Secretary shall prepare, and make available to the 
public, an environmental assessment 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) of this section that requires 
the modification or expansion of any facility at the site, and a 
discussion of alternative activities that may be undertaken to avoid 
such impacts. Such environmental assessment shall include--
        (i) an estimate of the amount of storage capacity 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 provision 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 provision of such 
    storage capacity at such site on the public health and safety, and 
    the environment;
        (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 capacity;
        (vi) a description of any other sites and facilities that have 
    been considered by the Secretary for the provision of such storage 
    capacity; and
        (vii) an assessment of the regional and local impacts of 
    providing such storage capacity at such site, including the impacts 
    on transportation.

    (B) The issuance of any environmental assessment under this 
paragraph shall be considered to be a final agency action subject to 
judicial review in accordance with the provisions of chapter 7 of title 
5. Such judicial review shall be limited 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 impact 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 provide, 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 undertaking 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 establish a cooperative agreement under which 
such State and Council shall have the right to participate in a process 
of consultation and cooperation, 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 cooperation 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 failure 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 accordance with applicable law of all technical and 
licensing information, the utilization of available expertise, the 
facilitating of permitting procedures, joint project review, and the 
formulation of joint surveillance and monitoring arrangements to carry 
out applicable Federal and State laws. The cooperative agreement also 
shall include a detailed plan or schedule of milestones, decision points 
and opportunities for State or eligible Tribal Council review and 
objection. Such cooperative agreement shall provide procedures for 
negotiating and resolving objections of the State and affected Tribal 
Council in any stage of planning, development, modification, 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 methodology by which the Secretary (A) keeps 
the State and eligible Tribal Council fully and currently 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 resolve, 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, modification, expansion, or operation of the 
project.
    (5) The Secretary and the State and affected Tribal Council shall 
seek to conclude the agreement required by paragraph (2) as soon as 
practicable, but not later than 180 days following the date of 
notification of the selection under paragraph (2). The Secretary shall 
periodically report to the Congress thereafter on the status of the 
agreements approved under paragraph (3). Any report to the Congress on 
the status of negotiations 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) of this section at any 
one site, the Secretary shall notify the Governor and legislature of the 
State where such site is located, or the governing body of the Indian 
tribe in whose reservation such site is located, as the case may be, of 
such decision. During the 60-day period following 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 
located, 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 submitted to the Congress on the date of the 
transmittal of such notice of disapproval to the Speaker of the House 
and the President pro tempore of the Senate. Such notice of disapproval 
shall be accompanied by a statement of reasons explaining why the 
provision of such storage capacity at such site was disapproved by such 
Governor 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 person or entity.
    (C) The authority of the Governor and legislature of each State 
under this paragraph shall not be applicable with respect to any site 
located on a reservation.
    (D) If any notice of disapproval is submitted to the Congress under 
subparagraph (A), the proposed 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 
Congress following the date of the receipt by the Congress of such 
notice of disapproval, the Congress passes a resolution approving such 
proposed provision of storage capacity in accordance with the procedures 
established in this paragraph and subsections (d) through (f) of section 
10135 of this title and such resolution thereafter becomes law. For 
purposes of this paragraph, the term ``resolution'' means a joint 
resolution of either House of the Congress, the matter after the 
resolving clause of which is as follows: ``That there hereby is approved 
the provision of 300 or more metric tons of spent nuclear fuel storage 
capacity at the site located at ______________, with respect to which a 
notice of disapproval was submitted by ______________ on 
______________.''. The first blank space in such resolution shall be 
filled with the geographic location of the site involved; the second 
blank space in such resolution shall be filled with the designation of 
the State Governor and legislature or affected Indian tribe governing 
body submitting 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 acceptable site for interim 
storage capacity of spent nuclear fuel from civilian nuclear power 
reactors, 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 boundaries 
arising out of congressionally ratified treaties, as determined by the 
Secretary of the Interior 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.

(e) Limitations

    Any spent nuclear fuel stored under this section 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 retrievable storage facility developed under 
this chapter is available for disposal of such spent nuclear fuel.

(f) Report

    The Secretary shall annually prepare and submit to the Congress a 
report on any plans of the Secretary for providing storage capacity 
under this section. Such report shall include a description 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 available 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 subsection (b) of this section that a person 
owning and operating a civilian nuclear power reactor cannot reasonably 
provide adequate spent nuclear fuel storage capacity at the civilian 
nuclear power reactor site when needed to ensure the continued orderly 
operation of such reactor. Such criteria shall ensure the maintenance of 
a full core reserve storage capability at the site of such reactor 
unless the Commission determines that maintenance of such capability is 
not necessary for the continued orderly operation of such reactor. Such 
criteria shall identify the feasibility of reasonably providing such 
adequate spent nuclear 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 compaction, 
transshipment of spent nuclear fuel to another civilian nuclear power 
reactor within the same utility system, construction of additional 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 encourage, authorize, or require the private or 
Federal use, purchase, lease, or other acquisition 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 \1\ of this title 
from spent nuclear fuel received by the Secretary for storage under this 
section. Such spent nuclear fuel shall not be subject to the provisions 
of subsection (e) of this section.
---------------------------------------------------------------------------
    \1\ See References in Text note below.
---------------------------------------------------------------------------

(Pub. L. 97-425, title I, Sec. 135, Jan. 7, 1983, 96 Stat. 2232.)

                       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, 
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. 
(a)(1)(A)(i), is Pub. L. 93-438, Oct. 11, 1974, 88 Stat. 1233, as 
amended, which is classified principally to chapter 73 (Sec. 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.

                  Section Referred to in Other Sections

    This section is referred to in sections 10139, 10156, 10198 of this 
title.
