39–010

105TH CONGRESS REPORT " ! 1st Session SENATE 105–10

NUCLEAR WASTE POLICY ACT OF 1997

MARCH 20, 1997.—Ordered to be printed

Mr. MURKOWSKI, from the Committee on Energy and Natural

Resources, submitted the following

REPORT

together with

MINORITY VIEWS

[To accompany S. 104]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 104) to amend the Nuclear Waste Policy Act

of 1982, having considered the same, reports favorably thereon

with amendments and recommends that the bill, as amended, do

pass.

The amendments are as follows:

1. Beginning on page 21, strike line 12 and all that follows

through page 24, line 5, and insert the following:

‘‘SEC. 202. TRANSPORTATION PLANNING.

‘‘(a) TRANSPORTATION READINESS.—The Secretary—

‘‘(1) shall take such actions as are necessary and appropriate to ensure that

the Secretary is able to transport safely spent nuclear fuel and high-level radioactive waste from sites designated by the contract holders to mainline transportation facilities and from the mainline transportation facilities to the interim

storage facility or repository, using routes that minimize, to the maximum practicable extent consistent with Federal requirements governing transportation of

hazardous materials, transportation of spent nuclear fuel and high-level radioactive waste through populated areas, beginning not later than November 30,

1999; and

‘‘(2) not later than November 30, 1999, shall, in consultation with the Secretary of Transportation and affected States and tribes, develop and implement

a comprehensive management plan that ensures that safe transportation of

spent nuclear fuel and high-level radioactive waste from the sites designated by

the contract holders to the interim storage facility site beginning not later than

that date.

‘‘(b) TRANSPORTATION PLANNING—

‘‘(1) IN GENERAL.—In conjunction with the development of the logistical plan

in accordance with subsection (a), the Secretary shall update and modify, as

necessary, the Secretary’s transportation institutional plans to ensure that in-
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stitutional issues are addressed and resolved on a schedule to support the commencement of transportation of spent nuclear fuel and high-level radioactive

waste to the interim storage facility not later than November 30, 1999.

‘‘(2) MATTERS TO BE ADDRESSED.—Among other things, planning under paragraph (1) shall provide a schedule and process for addressing and implementing,

as necessary—

‘‘(A) transportation routing plans;

‘‘(B) transportation contracting plans;

‘‘(C) transportation training in accordance with section 203;

‘‘(D) public education regarding transportation of spent nuclear fuel and

high level radioactive waste; and

‘‘(E) transportation tracking programs.

‘‘(c) SHIPPING CAMPAIGN TRANSPORTATION PLANS.—

‘‘(1) IN GENERAL.—The Secretary shall develop a transportation plan for the

implementation of each shipping campaign (as that term is defined by the Secretary) from each site at which high-level nuclear waste is stored, in accordance

with the requirements stated in Department of Energy Order No. 460.2 and the

Program Manager’s Guide.

‘‘(2) REQUIREMENTS.—A shipping campaign transportation plan shall—

‘‘(A) be fully integrated with State, and tribal government notification, inspection, and emergency response plans along the preferred shipping route

or State-designated alternative route identified under subsection (b); and

‘‘(B) be consistent with the principles and procedures developed for the

safe transportation of transuranic waste to the Waste Isolation Pilot Plant

(unless the Secretary demonstrates that a specific principle or procedure is

inconsistent with a provision of this Act).

‘‘(d) SAFE SHIPPING ROUTES AND MODES.—

‘‘(1) IN GENERAL.—The Secretary shall evaluate the relative safety of the proposed shipping routes and shipping modes from each shipping origin to the interim storage facility or repository compared with the safety of alternative

modes and routes.

‘‘(2) CONSIDERATIONS.—The evaluation under paragraph (1) shall be conducted in a manner consistent with regulations promulgated by the Secretary

of Transportation under authority of chapter 51 of title 49, United States Code,

and the Nuclear Regulatory Commission under authority of the Atomic Energy

Act of 1954 (42 U.S.C. 2011 et seq.), as applicable.

‘‘(3) DESIGNATION OF PREFERRED SHIPPING ROUTE AND MODE.—Following the

evaluation under paragraph (1), the Secretary shall designate preferred shipping routes and modes from each civilian nuclear power reactor and Department of Energy facility that stores spent nuclear fuel or other high-level defense

waste.

‘‘(4) SELECTION OF PRIMARY SHIPPING ROUTE.—If the Secretary designates

more than 1 preferred route under paragraph (3), the Secretary shall select a

primary route after considering, at a minimum, historical accident rates, population, significant hazards, shipping time, shipping distance, and mitigating

measures such as limits on the speed of shipments.

‘‘(5) USE OF PRIMARY SHIPPING ROUTE AND MODE.—Except in cases of emergency, for all shipments conducted under this Act, the Secretary shall cause the

primary shipping route and mode or State-designated alternative route under

chapter 51 of title 49, United States Code, to be used. If a route is designated

as a primary route for any reactor or Department of Energy facility, the Secretary may use that route to transport spent nuclear fuel or high-level radioactive waste from any other reactor or Department of Energy facility.

‘‘(6) TRAINING AND TECHNICAL ASSISTANCE.—Following selection of the primary shipping routes, or State-designated alternative routes, the Secretary

shall focus training and technical assistance under section 203(c) on those

routes.

‘‘(7) PREFERRED RAIL ROUTES.—

‘‘(A) REGULATION.—Not later than 1 year after the date of enactment of

the Nuclear Waste Policy Act of 1997, the Secretary of Transportation, pursuant to authority under other provisions of law, shall promulgate a regulation establishing procedures for the selection of preferred routes for the

transportation of spent nuclear fuel and nuclear waste by rail.

‘‘(B) INTERIM PROVISION.—During the period beginning on the date of enactment of the Nuclear Waste Policy Act of 1997 and ending on the date

of issuance of a final regulation under subparagraph (A), rail transportation

of spent nuclear fuel and high-level radioactive waste shall be conducted in
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accordance with regulatory requirements in effect on that date and with

this section.

‘‘SEC. 203. TRANSPORTATION REQUIREMENTS.

‘‘(a) PACKAGE CERTIFICATION.—No spent nuclear fuel or high-level radioactive

waste may be transported by or for the Secretary under this Act except in packages

that have been certified for such purposes by the Commission.

‘‘(b) STATE NOTIFICATION.—The Secretary shall abide by regulations of the Commission regarding advance notification of State and tribal governments prior to

transportation of spent nuclear fuel or high-level radioactive waste under this Act.

‘‘(c) TECHNICAL ASSISTANCE.— ‘‘(1) IN GENERAL.—

‘‘(A) STATES AND INDIAN TRIBES.—As provided in paragraph (3), the Secretary shall provide technical assistance and funds to States and Indian

tribes for training of public safety officials of appropriate units of State,

local, and tribal government. A State shall allocate to local governments

within the State a portion any funds that the Secretary provides to the

State for technical assistance and funding.

‘‘(B) EMPLOYEE ORGANIZATIONS.—The Secretary shall provide technical

assistance and funds for training directly to nonprofit employee organizations and joint labor-management organizations that demonstrate experience in implementing and operating worker health and safety training and

education programs and demonstrate the ability to reach and involve in

training programs target populations of workers who are or will be directly

engaged in the transportation of spent nuclear fuel and high-level radioactive waste, or emergency response or post-emergency response with respect to such transportation.

‘‘(C) TRAINING.—Training under this section—

‘‘(i) shall cover procedures required for safe routine transportation of

materials and procedures for dealing with emergency response situations;

‘‘(ii) shall be consistent with any training standards established by

the Secretary of Transportation under subsection (g); and

‘‘(iii) shall include—

‘‘(I) a training program applicable to persons responsible for responding to emergency situations occurring during the removal and

transportation of spent nuclear fuel and high-level radioactive

waste;

‘‘(II) instruction of public safety officers in procedures for the

command and control of the response to any incident involving the

waste; and

‘‘(III) instruction of radiological protection and emergency medical personnel in procedures for responding to an incident involving

spent nuclear fuel or high-level radioactive waste being transported.

‘‘(2) NO SHIPMENTS IN NO TRAINING.—(A) There will be no shipments of spent

nuclear fuel and high-level radioactive waste through the jurisdiction of any

State or the reservation lands of any Indian Tribe eligible for grants under

paragraph (3)(B) unless technical assistance and funds to implement procedures

for safe routine transportation and for dealing with emergency response situations under paragraph (1)(A) have been available to a State or Indian Tribe for

at least two years prior to any shipment. Provided, however, the Secretary may

ship spent nuclear fuel and high-level radioactive waste if technical assistance

or funds have not been made available due to (1) an emergency, including the

sudden and unforeseen closure of a highway or rail line or the sudden and unforeseen need to remove spent fuel from a reactor because of an accident, or (2)

the refusal to accept technical assistance by a State or Indian Tribe, or (3)

fraudulent actions which violate federal law governing the expenditure of federal funds.

‘‘(B) In the event the Secretary is required to transport spent fuel or high

level radioactive waste through a jurisdiction prior to 2 years after the provision

of technical assistance or funds to such jurisdiction, the Secretary shall, prior

to such shipment, hold meetings in each state and Indian reservation through

which the shipping route passes in order to present initial shipment plans and

receive comments. Department of Energy personnel trained in emergency response shall escort each shipment. Funds and all Department of Energy training resources shall be made available to States and Indian Tribes along the

shipping route no later than three months prior to the commencement of ship-
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ments, Provided, however, that in no event shall such shipments exceed 1,000

metric tons per year, and provided further, that no such shipments shall be conducted more than four years after the effective date of the Nuclear Waste Policy

Act of 1997.

‘‘(3) GRANTS.— ‘‘(A) IN GENERAL.—To implement this section, grants shall be made under

section 401(c)(2).

‘‘(B) GRANTS FOR DEVELOPMENT OF PLANS.— ‘‘(i) IN GENERAL.—The Secretary shall make a grant of at least $150,000 to each State through the jurisdiction of which and each federally recognized Indian tribe through the reservation lands of which

a shipment of spent nuclear fuel or high-level radioactive waste will be

made under this Act for the purpose of developing a plan to prepare

for such shipments.

‘‘(ii) LIMITATION.—A grant shall be made under clause (i) only to a

State or a federally recognized Indian tribe that has the authority to

respond to incidents involving shipments of hazardous material.

‘‘(C) GRANTS FOR IMPLEMENTATION OF PLANS.— ‘‘(i) IN GENERAL.—Annual implementation grants shall be made to

States and Indian tribes that have developed a plan to prepare for shipments under this Act under subparagraph (B). The Secretary, in submitting annual departmental budget to Congress for funding of implementation grants under this section, shall be guided by the State and

tribal plans developed under subparagraph (B). As part of the Department of Energy’s annual budget request, the Secretary shall report to

Congress on—

‘‘(I) the funds requested by states and federally recognized Indian

tribes to implement this subsection;

‘‘(II) the amount requested by the President for implementation;

and

‘‘(III) the rationale for any discrepancies between the amounts

requested by States and federally recognized Indian tribes and the

amounts requested by the President.

‘‘(ii) ALLOCATION.—Of funds available for grants under this subparagraph for any fiscal year—

‘‘(I) 25 percent shall be allocated by the Secretary to ensure minimum funding and program capability levels in all States and Indian tribes based on plans developed under subparagraph (B); and

‘‘(II) 75 percent shall be allocated to States and Indian tribes in

proportions to the number of shipment miles that are projected to

be made in total shipments under this Act through each jurisdiction.

‘‘(4) AVAILABILITY OF FUNDS FOR SHIPMENTS.—Funds under paragraph (1)

shall be provided for shipments to an interim storage facility or repository, regardless of whether the interim storage facility or repository is operated by a

private entity or by the Department of Energy.

2. On page 24, line 16, strike ‘‘1986’’ and insert ‘‘1997’’.

3. On page 29, line 8 after the period insert: ‘‘The President shall

not designate the Hanford Nuclear Reservation in the State of

Washington as a site for construction of an interim storage facility.’’.

4. On page 33, beginning on line 22, strike ‘‘once the Secretary

has achieved’’ and insert ‘‘in each year in which the actual emplacement rate is greater than’’.

5. On page 34, line 6, strike ‘‘annual’’ and insert ‘‘actual’’.

6. On page 34, after line 21, insert the following new sentence:

‘‘Provided, however, that the Secretary shall accept not less than

5% of the total quantity of spent fuel accepted in any one year from

the categories of radioactive materials described in subparagraphs

(B) and (C).’’.

7. On page 59, lines 8 and 12, strike ‘‘2002’’ and insert ‘‘2003’’.

8. On page 87, line 2, strike ‘‘The Board’’ and all that follows

down to the end of line 9 and insert the following:
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‘‘The Board shall evaluate the technical and scientific validity of activities undertaken by the Secretary after December

22, 1987, including—

‘‘(1) site characterization activities; and

‘‘(2) activities relating to the packaging or transportation

of high-level radioactive waste or spent nuclear fuel.

9. On page 87, line 17, strike ‘‘The Secretary’’ and all that follows

through ‘‘per calendar year.’’.

10. On page 88, lines 1 and 2, strike ‘‘that is generally available

to the public’’.

11. On page 88, strike lines 4 through 7, and insert the following:

‘‘(2) AVAILABILITY OF DRAFTS.—Subject to existing law, information obtainable under paragraph (1) shall not be limited to

final work products of the Secretary, but shall include drafts

of such products and documentation of work in progress.’’.

12. On page 91, strike lines 10 through 12 and insert the following: ‘‘Notwithstanding section 401(d), and subject to section 401(e),

there are authorized to be appropriated for expenditures from

amounts in the Nuclear Waste Fund under section 401(c) such

sums as may be necessary to carry out the provisions of this title.’’.

13. Beginning on page 92, strike line 18 through line 3 on page

93, and renumber the subsequent paragraphs accordingly.

PURPOSE OF THE MEASURE

S. 104, as reported by the Committee, would amend the Nuclear

Waste Policy Act of 1982 (NWPA of 1982) to direct the Secretary

of Energy to develop an integrated management system for spent

nuclear fuel and high-level nuclear waste. The bill provides for the

construction and operation of a centralized interim storage facility

and completion of siting and licensing activities with regard to a

permanent geologic repository at Yucca Mountain.

SUMMARY OF MAJOR PROVISIONS

The bill provides for enactment of the Nuclear Waste Policy Act

of 1997, as a replacement for the NWPA of 1982, as amended. Title

I establishes the obligation of the Secretary of Energy (Secretary)

to develop an integrated management system under which the Secretary shall accept, transport, store, and dispose of spent nuclear

fuel and high-level radioactive waste. Title I also provides that

nothing in the bill is intended to modify any right of a contract

holder under the NWPA of 1982, or modify obligations imposed on

the Federal government by the U.S. District Court of Idaho in

United States v. Batt (No. 91–0054–S–EIJ).

Title II requires the Secretary to commerce emplacement of spent

nuclear fuel and high level waste in an interim storage facility no

later than November 30, 1999, with certain contingencies that

could delay the commencement of facility operations by approximately one year. The Secretary is required to apply to the Commission for authorization to construct a repository by December 31,

2001.

Title III continues the Nuclear Waste Fund, as established under

the NWPA of 1982, and provides for the collection of the fee as a

‘‘user fee’’ beginning in fiscal year 2004. Titles IV and V of the bill
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continues various provisions of the NWPA of 1982, including the

activities of the Office of Civilian Radioactive Waste Management

and the Nuclear Waste Technical Review Board.

BACKGROUND AND NEED

Nuclear power plants, which provide 20% of the United States’

electric generating capacity, burn small uranium pellets which are

loaded into rods within the reactor. Approximately every 18

months, a reactor is refueled, at which time between one-fourth

and one-third of the reactor’s fuel, which has become inefficient, or

‘‘spent,’’ is removed. All nuclear reactors were designed with on-site

storage pools that were intended to serve as temporary storage

while the highly radioactive fuel cooled before transport to a permanent storage site. However, because no permanent storage site

exists, the reactors have been forced to retain spent fuel in their

storage pools indefinitely. A typical nuclear plant producers about

30 tons of spent fuel a year. At this time, over 30,000 metric tons

of spent fuel is now in temporary storage at nuclear power plants

at 75 sites across the country. The fuel is very dense: all of the

spent fuel produced by all of America’s nuclear plants over the last

30 years would cover only an area the size of a football field to a

depth of about three yards.

In addition to the commercial nuclear power industry, the Federal government has produced spent nuclear fuel and high-level nuclear waste through defense and research activities. Research reactors owned by the Department of Energy (DOE) and universities

produce spent nuclear fuel that is currently stored at DOE sites

across the country. However, most of the fuel at DOE sites is from

reactors at the Hanford and Savannah River Sites that produced

materials for DOE’s nuclear weapons program. These reactors are

no longer operating. The fuel from the weapons facilities was intended to be processed to extract weapons-grade materials, and as

a result, most must be stabilized in some manner before it can be

safely stored for long periods of time.

Also, since 1957, spent nuclear fuel from nuclear-powered naval

vessels and naval reactor prototypes has been transported to the

Naval Reactors Facility at the Idaho National Engineering Laboratory (INEL) for testing and examination, where it is then stored by

DOE. In the course of litigation over the State of Idaho’s attempt

to stop the importation of further waste into the state, a court

order was issued on December 22, 1993 that allowed only a limited

number of shipments of spent fuel to Idaho pending the completion

of an environmental impact statement (EIS) by DOE. In April,

1995, DOE completed an EIS that confirmed DOE’s plan to store

spent naval fuel at INEL. The State of Idaho contested the adequacy of the EIS and objected to further shipments. On October 16,

1995, the State of Idaho, DOE and the Navy entered into a settlement agreement that allows limited shipments of navy fuel to

Idaho in return for DOE’s commitment to remove the fuel by January 1, 2035.

High-level nuclear waste has also been produced by defense activities. High-level waste is the highly radioactive waste material

that results from the chemical reprocessing of spent nuclear fuel

and irradiated targets. Government operations from 1944 to the
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present have generated approximately 398,700 cubic meters of

high-level waste at four sites—the Hanford Site, INEL, the Savannah River Site, and the West Valley Demonstration Project. The

Hanford facility alone has 61 million gallons of high-level radioactive waste in 177 tanks. DOE plans to stabilize these wastes by

transforming them into a glass-like material, through a process

called vitrification. DOE estimates that, depending upon canister

design and waste composition, approximately 30,000 canisters of

vitrified high-level waste may require disposal.

The Nuclear Waste Policy Act and amendments

In 1982, Congress adopted the Nuclear Waste Policy Act

(NWPA), which required the DOE to design and implement a system to dispose of spent nuclear fuel in a permanent geologic repository. The NWPA required DOE to begin accepting spent fuel from

commercial reactors at a repository by 1998. In 1985, the President

determined that defense-related spent fuel held by DOE could be

emplaced within the permanent repository. To fund the project,

Congress ordered that the Department of Energy collect a fee of

one mill (one-tenth of one cent) per kilowatt hour on electricity generated by nuclear energy. The fee is collected by utilities from their

ratepayers in their monthly bills and placed into a special ‘‘Nuclear

Waste Fund’’ in the Treasury. The Fund receives over half a billion

dollars per year from collections and $300 million per year in interest on the unobligated balance. To date, more than $12 billion in

fees and interest has been placed in the Fund. In addition, funds

are appropriated annually from the Defense Programs budget at

DOE to the nuclear waste disposal program to pay for the disposal

of defense spent fuel and waste.

By 1987, DOE has focused on potential sites for a geologic repository in Texas, the State of Washington, and Yucca Mountain, Nevada, as well as several sites in the eastern U.S. In the Nuclear

Waste Policy Amendments Act (NWPAA), Congress reaffirmed that

DOE should construct a geologic repository, and instructed DOE to

study the suitability of only the Yucca Mountain site. Due to litigation over the attempts of the State of Nevada to stop the study of

Yucca Mountain, DOE was unable to begin site characterization activities until 1991. Although the management of the Yucca Mountain site characterization program has been frequently criticized in

the past, management reforms in recent years have produced a

much more efficient program. For example, despite a reduction in

funding, the tunneling operation at the Exploratory Studies Facility in Yucca Mountain is more than three months ahead of the

original schedule. DOE expects to have the five mile loop of tunnel

completed in late March, as compared to the original deadline of

midsummer.

Although DOE will have spent almost $6 billion through the second quarter of fiscal year 1997 on the program, DOE has conceded

that the 1998 deadline for the acceptance of spent nuclear fuel will

not be met. In May of 1996, DOE issued a draft ‘‘Civilian Radioactive Waste Management Program Plan’’ that calls for a complete

viability assessment of the Yucca Mountain Repository site in 1998,

the recommendation of a repository site to the President in 2001,
8

and the submission of a repository license application to the Nuclear Regulatory Commission in 2002.

Budget issues

Although the Nuclear Waste Fund has a balance of over $6 billion that was collected from ratepayers for precisely this purpose,

the money is considered to be ‘‘on-budget,’’ and as such, is subject

to discretionary spending caps under Gramm-Rudman-Hollings.

Thus, any increases over past spending levels will require spending

reductions in other DOE programs under the spending cap. In its

fiscal year 1995 budget request, DOE proposed that future contributions to the Nuclear Waste Fund be set aside in a special ‘‘offbudget’’ fund for the program, with one-half of those funds available as a permanent appropriation each year. This proposal, which

would have required legislative action, was not adopted by the Congress. Although the appropriations committees expressed strong

concerns regarding the management of the program, they increased

funding for the program in FY 1995.

In its FY 96 Budget Request, DOE proposed again that a mandatory appropriation be established from the Nuclear Waste Fund of

$431.6 million per year and requested no money from the Fund

under DOE discretionary funding. DOE did request an additional

$200 million from Defense Programs for the defense share of the

project, resulting in a total proposed funding level of $630 million.

The change to mandatory funding was not adopted by the Congress. The Energy and Water Appropriations bill that was passed

on October 31, 1995 provides $400 million from DOE discretionary

funding for the entire DOE civilian nuclear waste program. Of the

$400 million, $85 million is set aside for construction of an interim

storage facility, but is ‘‘fenced’’ and cannot be spent until authorizing legislation is passed. An amendment by Senator Johnston that

would have authorized the construction of an interim storage facility in Nevada was rejected by the Energy and Water Conferees,

primarily because of President Clinton’s threat that he would veto

a bill that contained such a provision.

In the fiscal year 1997 Energy and Water Appropriations Act,

$382,000,000 was appropriated for the program. The Act contained

language requiring DOE to issue a viability assessment of the potential permanent repository site at Yucca Mountain by September

30, 1998, and described the contents of that assessment.

Interim storage

As it became clear that a permanent repository would not be

open by the 1998 deadline, the 1987 NWPAA established the Office

of the Nuclear Waste Negotiator, which was established to find a

volunteer state or Indian tribe to host a temporary storage facility,

referred to as a ‘‘monitored retrievable storage’’ facility or ‘‘MRS.’’

Although several Indian tribes applied for study grants, due to

state and Congressional intervention in the process, the program

was unable to make progress in siting an MRS. Although funds

had been appropriated for the Office through the end of FY ’95,

under the terms of the NWPA, the Office terminated on December

22, 1994. In any case, because the NWPA links the siting of an

MRS to the siting of the permanent repository, DOE cannot select
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an MRS site until the Secretary has recommended that a permanent repository be built at Yucca Mountain, and cannot begin construction of an MRS until the NRC has issued a construction authorization for the permanent repository. The NWPA also prohibits

the construction of the MRS in Nevada.

Twenty-three reactors will run out of room in their spent fuel

storage pools by 1998, the deadline for the acceptance of waste by

DOE. By 2010, DOE’s rather optimistic target date for opening a

permanent repository, an additional 55 reactors will be out of

space. Thus, many utilities with limited space in their storage pools

have begun to search for alternative storage facilities. At this time,

seven utilities have on-site dry canister storage at their reactors.

In 1994, Northern States Power Company (NSP) was forced to

apply for approval from the Minnesota State Legislature for on-site

dry storage for its spent nuclear fuel. Although NSP eventually

won permission to store the spent fuel on-site, it was only after a

long high-profile battle in the state legislature. During the debate,

NSP, along with 33 other utility and 2 contractor partners, began

negotiations with the Mescalero Indian Tribe regarding the siting

of a privately funded MRS on tribal lands. In a tribal referendum,

the Mescaleros rejected the proposal. However, subsequently, more

than one-half of the registered voters on the reservation signed a

petition to schedule a new referendum in which the proposal was

accepted. Although these negotiations do not appear to be proceeding at this time, a similar group of utilities is attempting to negotiate a similar deal with the Skull Valley Goshute Tribe in Utah.

A privately funded MRS could be constructed as long as the facility

met Nuclear Regulatory Commission certification standards.

In the meantime, many state regulators have become quite angry

with the current situation in which they are required to collect

money from state ratepayers to fund a DOE waste program which

will not accept waste any time in the foreseeable future, while, at

the same time, the utilities are faced with growing expenses for onsite storage or for a private MRS. When DOE admitted that it

would be unable to take spent fuel in 1998, a group of state regulatory agencies, nuclear utilities and state Attorneys General joined

together to form the Nuclear Waste Strategy Coalition and sue

DOE for breaching the contracts entered into under the NWPA. On

July 23, 1996, the U.S. Court of Appeals for the District of Columbia Circuit ruled that section 302(a)(5)(B) of the Nuclear Waste Policy Act ‘‘creates an obligation in DOE, reciprocal to the utilities obligation to pay, to start disposing of the [spent nuclear fuel] no

later than January 31, 1998.’’ The Court found that it was premature to determine the appropriate remedy, as DOE had not yet

defaulted upon its obligation. DOE did not appeal the Court’s decision. On December 17, 1996, DOE sent a letter to all nuclear plant

owners, indicating that DOE would be unable to fulfill its obligation. On January 31, 1997, in light of the contents of this letter,

a new lawsuit was filed against DOE. The petitioners requested

that the Court issue a declaration that the utilities are authorized

to place their fees into escrow until DOE begins taking spent nuclear fuel. They also requested that the Court issue a writ of mandamus ordering DOE to develop a program to take spent nuclear

fuel by January 31, 1998.
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Outside of the lawsuit, many state commissions are investigating

the possibility of either refusing to allow the passthrough of the

Nuclear Waste Fee in utility rates or placing the fee into escrow

rather than forwarding it to the Federal government.

In 1995, the County Commission of Lincoln County, Nevada, a

county adjacent to the Yucca Mountain site, passed a resolution inviting DOE to build a spent fuel cask handling facility and temporary storage facility in Lincoln County in return for specified

payments and benefits to the county. Under the proposal, spent

fuel casks would be removed from the Union Pacific Railroad line

in Elgin, Nevada, and stored there. If Yucca Mountain is deemed

a suitable site for a permanent repository, under the proposal, a

heavy-haul road would be constructed to truck the casks of spent

fuel to the Yucca Mountain site. The state government in Nevada,

which has been constant in its objections to the Yucca Mountain

project, filed civil and criminal lawsuits against the Lincoln County

Commissioners for making the proposal. These lawsuits have since

been settled.

The multipurpose canister

For some time, DOE has discussed the concept of a ‘‘multipurpose canister’’ (MPC), which would be a thin-walled canister in

which spent fuel assemblies would be sealed. The canister may be

placed in different overpacks, depending upon the function required, such as a steel cask for transport. In 1994, DOE made the

decision to design and develop an MPC that will meet NRC standards for storage and transport. This decision appears to have been

prompted by increasing pressure to fulfill DOE’s contractual commitment to begin accepting spent fuel in 1998. The MPC would be

intended to be used for on-site dry storage by those reactors that

are running out of space in their spent fuel pools. In April, 1995,

a contract was awarded to Westinghouse Electric Corporation for

the first design phase of the MPC program. Because of reduced

funding in subsequent years, the second (NRC certification) and

third (fabrication and deployment) phases of the MPC project will

not proceed at this time. Instead, in December, 1996, DOE issued

a ‘‘Draft Request for Proposals’’ with regard to competitive proposals for the provision of acceptance, transportation and delivery

services, including the provision of storage and transportation

casks from the private sector. Several private vendors are in various states of the development and certification process for ‘‘dual

purpose’’ canisters and casks, i.e., ones that can be used for both

transportation and storage.

Permanent disposal vs. retrievability

The Energy Policy Act of 1992 required a review by the National

Academy of Sciences (NAS) of technical bases for public health and

safety standards applicable to a repository at Yucca Mountain.

Based upon this report, the Environmental Protection Agency is required to set standards for disposal of spent fuel at Yucca Mountain. Specifically, the NAS was asked to determine whether it is

possible to predict whether a geologic repository will be unbreached

for a 10,000 year period. The NAS report was issued in August,

1995, and among other things, concluded that although the phys-
11

ical and geologic processes at Yucca Mountain are predictable

enough to allow the future performance of the repository to be assessed, the time of maximum releases from a repository may be

well after the 10,000 year time frame. Finally, the NAS panel concluded that risk-based standard for releases is called for, but that

it is up to policy-makers to decide what level of risk is acceptable

for people in the ‘‘critical group’’ living near the repository.

In light of the anticipated difficulty of meeting standards for the

permanent disposal of waste, some have suggested that a disposal

site be designed to allow ‘‘extended retrievability’’ rather than permanent disposal. A retrievable facility would allow a shorter licensing period, and allow the spent fuel to be retrieved and moved to

another location for storage or processing. However, the NWPA authorizes only the construction of a permanent geologic repository.

LEGISLATIVE HISTORY

Last year, S. 1271, the ‘‘Nuclear Waste Policy Act of 1996,’’ introduced by Senator Craig, was reported by the Committee with an

amendment in the nature of a substitute on March 29, 1996 (S.

Rept. 104–248). For procedural reasons, on July 9, S. 1936, a bill

containing the text of S. 1271 as reported out of Committee, was

introduced and placed on the Senate Legislative Calendar. The

Senate passed S. 1936 on July 31, 1996 by a 63 to 37 vote. The

President threatened to veto the legislation. No further action was

taken on the legislation by the House. As introduced, S. 104 was

identical to S. 1936, as it passed the Senate in the 104th Congress.

S. 104 was introduced on January 21, 1997 by Senator Murkowski for himself, Senator Craig, Senator Grams, Senator

Kempthorne, Senator Abraham, Senator Helms, Senator Thurmond, Senator Kyl, Senator Hollings, Senator Mack, Senator

Faircloth, Senator Hatch, Senator Warner, Senator Bond, Senator

Robert Smith, Senator Roberts, Senator Santorum, Senator Lott,

and Senator Jeffords. The bill was referred to the Committee on

Energy and Natural Resources. After introduction, Senator Cochran, Senator Thomas, Senator Robb, Senator Brownback, Senator

Burns, and Senator Ashcroft were added as co-sponsors.

On Wednesday, February 5, 1997, the Senate Committee on Energy and Natural Resources held a hearing regarding S. 104, the

‘‘Nuclear Waste Policy Act of 1997.’’

The Committee on Energy and Natural Resources met in open

business session on March 12 and 13, 1997, to consider S. 104, and

on March 13, 1997, by a majority vote ordered favorably reported

S. 104, as amended

COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

The Senate Committee on Energy and Natural Resources, in

open business session on March 13, 1997, by majority vote of a

quorum present recommends that the Senate pass S. 104, if

amended as described herein.

During the Committee’s consideration of the bill, roll call votes

were taken on amendments offered to the bill. These votes were

taken in open business session, have been announced publicly by

the Committee, and are included in the minutes of the session.
12

1 Indicates voted by proxy.

The rollcall vote on the motion to report S. 104, as amended, was

15 yeas, 5 nays as follows:

YEAS NAYS

Murkowski Bumpers

Domenici 1 Ford

Nickles Bingaman

Craig Akaka 1

Campbell 1 Dorgan

Thomas

Kyl 1

Grams

Smith 1

Gorton

Burns

Graham 1

Wyden

Johnson

Landrieu

COMMITTEE AMENDMENTS

During the consideration of S. 104, the Committee adopted

amendments as described herein.

Amendment Number 1. The amendment strengthens the transportation provisions of sections 202 and 203 of S. 104 by requiring

the Secretary to consult with States and Indian Tribes along shipping routes in the development of a comprehensive management

plan to ensure the safe transportation of spent nuclear fuel and

high-level radioactive waste. Section 202, as amended, directs the

Secretary to apply the same types of transportation preparations as

have been developed for the shipment of plutonium-contaminated

waste to the Waste Isolation Pilot Plant (WIPP) in New Mexico.

This includes a requirement that the shipping campaign plans be

fully integrated with state and tribal government notification, inspection and emergency response plans. In recognition of the tremendous public concern about radioactive material shipments, the

Secretary and States have worked cooperatively to develop the

WIPP transportation system over the past seven years. This transport safety system has been successfully applied to several nuclear

material shipping campaigns in recent years.

Section 202 is amended to result in the use of the safest shipping

routes and modes and allow training and other emergency response

preparations to be focused on these routes. The Secretary is required to evaluate the relative safety of alternative shipping routes

and shipping modes. Such evaluation must be consistent with applicable Department of Transportation (DOT) and Nuclear Regulatory Commission (NRC) regulations. Because there are no existing rail routing regulations governing shipment of spent nuclear

fuel and high-level radioactive waste, the Secretary of Transportation is directed to promulgate procedures for identifying preferred

rail routes for these shipments. Where DOT and NRC rules would

allow multiple potential routes to be used or in the absence of DOT
13

rail routing rules, the Secretary is directed to designate a primary

route, after considering, at a minimum, historical accident rates,

population, significant hazards, shipping time, shipping distance,

and mitigating measures. The Secretary is directed to sue the primary route, or state-designated alternative route, and to focus

training and technical assistance on those states and tribes along

the primary route. This will result in more efficient use of funds

and other resources.

Section 203 is amended to provide a method by which states and

Indian Tribes can receive funds and technical assistance to ensure

an appropriate level of planning and emergency response preparedness. The Secretary is required to provide such assistance along

shipping routes. The Secretary is further required to make planning grants of at least $150,000 to each State and Tribes through

whose jurisdiction shipments will be made. Grants are to be made

only to States or Federally recognized Indian Tribes that have the

authority to respond to incidents involving shipments of hazardous

materials. The Secretary is required to provide annual implementation grants to States and Tribes which have prepared plans. In requesting funds for implementation grants, the Secretary shall be

guided by the State and tribal plans and shall explain the rational

for any differences between the funds requested by the Secretary

and the funds identified in States and tribal plans as necessary to

prepare for shipments. Twenty-five percent of the implementation

grants shall be allocated by the Secretary to ensure minimum funding and program levels for all States and Tribes based on the state

and Tribal plans. Seventy-five percent of the implementation grant

funds shall be allocated in proportion to the number of shipment

miles in a State or Tribal reservation compared with the total shipment miles. Funds and technical assistance are to be provided for

shipments to an interim storage facility or repository regardless of

whether the facility is operated by the U.S. Department of Energy

or a private entity.

The amendment also provides that the Secretary may not ship

along a route unless technical assistance and funds have been

made available to the State or Indian Tribe for at least two years

prior to shipment. States and tribes need adequate time to evaluate

training and technical assistance needs along the selected routes,

to organize local responders and others who need training, and to

provide such training. The Secretary may ship without providing

assistance to States and tribes in the event of an emergency, or the

refusal of a State or Indian Tribe to accept assistance, or if funds

are not available for training due to fraudulent actions. If the Secretary is required to ship through the jurisdiction of a State or Indian Tribe without providing assistance two years in advance, Department of Energy personnel trained in emergency response must

escort each shipment and the Secretary must make funds and Departmental training resources available to the States or Indian

Tribes at least 90 days before commencing shipments. The amendment provides that such shipments shall not exceed 1,000 metric

tons per year, and shall not be counted more than four years after

enactment of the Nuclear Waste Policy Act of 1997.

Amendment Number 2. This amendment corrects a typographical

error that resulted in a reference to the ‘‘Nuclear Waste Policy Act
14

of 1986,’’ which does not exist. The reference is corrected to be to

the ‘‘Nuclear Waste Policy Act of 1997’’.

Amendment Number 3. The amendment amends section 204(b) to

provide that, in the event the Yucca Mountain site is found not to

be a viable site for a permanent repository, the President shall not

designate the Hanford Nuclear Reservation in the State of Washington as a site for construction of an interim storage facility for

commercial spent nuclear fuel. Hanford currently has over 2,000

metric tons of badly corroded spent nuclear fuel stored in aging facilities which have leaked at least twice in the past. Millions of gallons of highly radioactive liquid waste is stored in underground

tanks, many of which have also leaked and which are beyond their

design life. Construction of an interim storage facility at Hanford

for commercial spent nuclear fuel would divert management and

staff time away from Hanford’s waste management mission and increase the complexity of managing the dangerous wastes that are

already onsite.

Amendments 4–6. As amended, section 204(e)(3) provides that,

once the Secretary has achieved the annual acceptance rate for

spent nuclear fuel from civilian nuclear power reactors established

pursuant to contracts executed prior to the date of enactment of

the Act, the Secretary shall accept additional fuel and waste, including that from Department of Energy activities, naval reactors,

research reactors, and shutdown commercial reactors, in an

amount not less than 25% of the difference between the contractual

acceptance rate and annual emplacement rate for spent nuclear

fuel from civilian nuclear power reactors established under section

507(a)(2) of the Act. Provided, however, that a portion of the waste

(not less than 5%) that is accepted for emplacement by the Secretary in any given year will be spent nuclear fuel of military origin and/or Department of Energy spent nuclear fuel and high-level

radioactive waste. This provision corrects possible emplacement

scenarios under other provisions of the bill which would have precluded emplacement of any military or DOE waste unless the Department achieved certain triggering acceptance rates. This provision is not intended, however, to direct the storage of any spent nuclear fuel or high-level radioactive waste at the interim storage facility unless its storage is within the scope of the Nuclear Regulatory Commission license issued for the interim storage facility.

Under some limited circumstances, this 5 percent requirement

might reduce the Secretary’s ability to also accept material from

permanently closed plants under section 204(e)(3). On this point,

the Committee notes that the Secretary may use the existing authority within the Standard Contract to accept on a priority basis

such spent fuel and waste from permanently closed plants so as to

alleviate or otherwise avoid this circumstance. The early acceptance of spent nuclear fuel and waste from permanently closed

plants will be cost effective for such utilities, and also add operational benefits and financial savings to the overall program by assuring a consistent and uniform supply of material at the interim

facility.

Amendment Number 7. In the Nuclear Waste Policy Act of 1982

(NWPA of 1982), Congress required the Department of Energy to

fund the program by collecting a fee on each kilowatt hour of elec-
15

tricity generated by nuclear energy. The fee is connected by utilities from their ratepayers in their monthly bills and placed into a

special ‘‘Nuclear Waste Fund’’ in the Treasury. It is currently set

at one mill (one-tenth of one cent) per kilowatt hour, and results

in payments of over half a billion dollars per year from collections

and $300 million per year in interest on the unobligated balance.

To date, more than $12 billion in fees and interest have been

placed in the Fund, and about $6 billion has been spent. Under

this system, the fees collected that are not appropriated to the nuclear waste program are used to offset other government spending.

Thus, there is no actual Nuclear Waste ‘‘Fund,’’ and there is a disincentive to appropriate money to the program.

To address this problem, after October 1, 2002, S. 104 requires

that the fee be collected as a ‘‘user fee,’’ i.e., the fees collected each

year shall equal the level of appropriations for that year. Because

the collection of the current fee is not tied to appropriations, for

budgetary purposes, it is scored as ‘‘mandatory income.’’ Because

they are set at the level of appropriations for each fiscal year, user

fees are scored as ‘‘discretionary income.’’ Thus, under the Budget

Act, the transition to a user fee requires that the lost mandatory

income be ‘‘offset’’ by other mandatory income within the 10-year

budget ‘‘window.’’ S. 104 provides an offset for four years by collecting the ‘‘one-time’’ fee required to be paid under the NWPA of 1982

early, and thus institutes the user fee on October 1, 2002. Because

the fiscal year 1998 Budget Resolution has not yet been adopted,

we are still operating under the fiscal year 1997 Budget window.

S. 104, as written, is consistent with Budget Act requirements.

However, when Congress adopts a new budget resolution this year,

the 10-year budget window will move out one year. Thus, in anticipation of this change, amendment number 6 changes the date of

transition from the current nuclear waste fee to a ‘‘user fee’’ from

October 1, 2002 to October 1, 2003.

Amendment Number 8. The amendment amends section 603 of S.

104, to retain current law with respect to the charter of the Nuclear Waste Technical Review Board.

Amendment Number 9. The amendment makes a change suggested by the Nuclear Waste Technical Review Board at the Committee’s February 5, 1997, hearing. The amendment eliminates the

limitation on the number of days the Secretary of Energy, or his

designee, may be required to appear before the Board.

Amendments Number 10–11. Amendment 9 strikes the paragraph that provides that the information provided to the Board by

the Department of Energy ‘‘may’’ include ‘‘drafts of products and

documentation of work in progress.’’ Amendment 10 inserts the

language in the existing Nuclear Waste Policy Act of 1982, which

provides that information ‘‘shall’’ include such materials.

Amendment Number 12. This amendment strikes the provisions

of S. 104 that provides for funding for the Nuclear Waste Technical

Review from general appropriations, and inserts a provision authorizing funds to be appropriated from the Nuclear Waste Fund.

Amendment Number 13. The amendment eliminates the provision in S. 104 that requires the General Accounting Office to conduct an annual audit of the Office of Civilian Radioactive Waste

Management. The section to be eliminated carries over language
16

from the Nuclear Waste Policy Act of 1982, as originally enacted.

However, that section has since been amended by Public Law 104–

66, which makes the audits optional. GAO supports the elimination

of the requirement. GAO reports regarding the Department of Energy’s nuclear waste program may be requested by the Committee

as needed.

SECTION-BY-SECTION ANALYSIS

SECTION 1.—SHORT TITLE AND TABLE OF CONTENTS

The title of the Act is the ‘‘Nuclear Waste Policy Act of 1997.’’

SECTION 2.—DEFINITIONS

This section reenacts many of the definitions that were included

in the Nuclear Waste Policy Act of 1982, with modifications where

necessary to reflect provisions of the Nuclear Waste Policy Act of

1997, and eliminates those definitions that are no longer necessary.

New definitions are provided for ‘‘Accept,’’ ‘‘Acceptance,’’ ‘‘Affected

Indian Tribe,’’ ‘‘Contracts,’’ ‘‘Contract Holders,’’ ‘‘Disposal System,’’

‘‘Emplacement Schedule,’’ ‘‘Integrated Management System,’’ ‘‘Interim Storage Facility,’’ ‘‘Interim Storage Facility Site,’’ ‘‘Metric

Tons Uranium,’’ ‘‘Program Approach,’’ ‘‘Withdrawal,’’ and ‘‘Yucca

Mountain Site.’’ The definitions are self-explanatory.

TITLE I—OBLIGATIONS

SECTION 101.—OBLIGATIONS OF THE SECRETARY OF ENERGY

Subsection (a) establishes the obligation of the Secretary to develop and operate an integrated management system for the storage and permanent disposal of spent nuclear fuel and high-level radioactive waste. Subsection (b) requires the Secretary to commerce

storage of spent nuclear fuel and high-level waste at an interim

storage facility developed under the Act beginning not later than

November 30, 1999. Under subsections (c) and (d), the Secretary is

required to develop the remaining components of the integrated

management system, including the procurement of all systems and

components necessary to transport spent nuclear fuel and highlevel waste to the integrated management system facilities.

Subsection (e) requires the Secretary, in administering the integrated management system, to the maximum extent possible, to

utilize, employ, procure and contract with the private sector to fulfill the Secretary’s obligations and requirements under the Act.

This section is intended to ensure that the integrated management

system is operated, to the maximum extent possible, in an efficient

and cost-effective manner, and benefits from private sector management practices, operations, procedures, and labor practices.

Subsection (f) provides that nothing in the Nuclear Waste Policy

Act of 1997 is intended to or shall be construed to modify any right

of a contract holder under section 302(a) of the NWPA of 1982, or

under a contract executed thereunder prior to the date of enactment of this Act; or (2) obligations imposed on the Federal Government by the U.S. District Court of Idaho in United States v. Batt

(No. 91–0054–S–EJL). This section is intended to make clear that

the enactment of this Act will not have any effect on the outcome
17

of the lawsuits currently pending in the United States Court of Appeals for the District of Columbia or any subsequent litigation regarding the obligations of the Department or the rights of contract

holders under the contracts executed under the NWPA of 1982. The

rights of the plaintiffs in those cases, including utility contract

holders and state government representatives, will be determined

by the court and will not be impacted by the enactment of this Act.

Nor is the enactment of this Act intended to impact the obligations

and rights established in the court’s order in United States v. Batt.

Subsection (g) provides that subject to any valid existing rights

under subsection (f), nothing in this Act shall be construed to subject the United States to financial liability for the Secretary’s failure to meet any deadline for the acceptance or emplacement of

spend nuclear fuel or high-level waste under this Act. This section

does not address the liability of the United States for the failure

to meet any deadline for the acceptance of spent nuclear fuel or

high-level waste established under the NWPA of 1982 or the contracts executed thereunder, but rather is focused solely on the liability of the United States under the specific provisions of this

Act.

TITLE II—INTEGRATED MANAGEMENT SYSTEM

SECTION 201.—INTERMODAL TRANSFER

Subsection (a) requires the Secretary to utilize heavy-haul truck

transport to move fuel and waste from the mainline rail line at

Caliente, Nevada to the interim storage facility site. Subsection (b)

requires the Secretary to develop the capability to commence rail

to truck intermodal transfer at Caliente no later than November

30, 1999.

Subsection (c) requires the Secretary to acquire lands and rightsof-way necessary to commence intermodal transfer at Caliente.

Subsection (d) also requires Secretary to acquire and develop on behalf of, and dedicate to, the City of Caliente parcels of land and

rights-of-way as required to facilitate replacement of land and city

wastewater disposal activities necessary to commence intermodal

transfer pursuant to this Act. Such replacement shall occur no

later than November 30, 1999.

Subsection (e) requires Secretary, within 6 months of enactment,

to publish a legal description of the sites and rights-of-way to be

acquired and to file copies of a map of such sites and rights-of-way

with specified Federal, State, and local entities. Under subsection

(f), the Secretary is required to make improvements to existing

roadways selected for heavy-haul truck transport between Caliente

and the interim storage facility site as necessary to facilitate yearround safe transport of fuel and waste.

Subsection (g) requires the Commission to enter a Memorandum

of Understanding with the city of Caliente and Lincoln County, Nevada, to provide advice to the Commission regarding intermodal

transfer and to facilitate on-site representation. It also provides

that reasonable expenses of such representation shall be paid by

the secretary. Subsection (h) requires Secretary to offer to enter

into a benefits agreement with city of Caliente and Lincoln County,

Nevada concerning the Integrated Management System. It provides
18

that the agreement shall contain such terms and conditions, including financial and institutional arrangements, as the parties determine to be reasonable and appropriate and shall contain such provisions as are necessary to preserve any right to participation or

compensation of Lincoln County, Nevada.

Subsection (i) provides that, in addition to any benefits provided

Lincoln County under the agreement, the Secretary shall make

payments in accordance with the schedule provided in the bill and

prevents the Secretary from restricting the purposes for which the

payments under the schedule may be used. This section specifies

other required terms of the agreement, including dates for payments and governing law.

Subsection (j) provides that, with one exception, 120 days after

enactment of the Act, all right, title and interest of the United

States in thousands of acres of specifically designated property are

conveyed by operation of law to Lincoln County, including all improvements thereon and all necessary easements. Pursuant to the

exception, any designated property that is subject to a Federal

grazing permit or lease or a similar Federally granted permit or

lease shall be conveyed between 60 and 120 days of the earliest

time the Federal agency administering or granting the permit or

lease would be able to terminate legally such permit or lease under

applicable law, unless Lincoln County and the affected holder of

the permit or lease negotiate an agreement that allows for an earlier conveyance. It also provides that, upon request of Lincoln

County, the Secretary of the Interior shall provide evidence of title

transfer.

SECTION 202.—TRANSPORTATION PLANNING

This section requires the Secretary to take those actions necessary to ensure the ability to transport fuel and waste from sites

designated by contract holders to an interim storage facility or repository developed under the Act. In addition, this section specifies

regulatory requirements governing such transportation that are intended to augment the existing regulatory regime governing radioactive materials transportation and further protect the public safety.

Subsection (a)(1) requires the Secretary to take those actions necessary to ensure the ability to transport safely fuel and waste from

facilities designated by contract holders (e.g., an at-reactor storage

facility or an away from reactor storage facility) to mainline transportation facilities, and thereafter from the mainline transportation

facilities to the interim storage facility or repository. This subsection further requires that all such transportation shall take

place using routes that minimize, to the maximum practicable extent consistent with Federal requirements, transportation of fuel

and waste through populated areas. Such transportation shall commence no later than November 30, 1999, which is the date specified

in the Act for the commencement of operations at an interim storage facility.

Subsection (a)(2) requires the Secretary, no later than November

30, 1999, in consultation with the Secretary of Transportation and

affected States and Tribes, to develop and implement a comprehensive management plan that ensures the safe transportation of fuel
19

and waste from sites designated by contract holders to the interim

storage facility beginning no later than November 30, 1999. The

management plan would address, among other things, transportation logistical issues, schedules, routes, and other transportation

requirements specified in this Act.

Subsection (b) requires the Secretary, in conjunction with the development of the management plan, to update and modify, as necessary, the Secretary’s institutional plans to ensure the resolution

of outstanding institutional issues on a schedule that supports the

commencement of transportation of fuel and waste to the interim

storage facility by November 30, 1999. Specific institutional issues

that should be addressed and implemented are identified, including

transportation routing plans, transportation contracting plans,

transportation training in accordance with section 203, public education regarding transportation of fuel and waste, and transportation tracking programs.

Subsection (c)(1) requires the Secretary to develop a transportation plan for the implementation of each ‘‘shipping campaign’’ as

that term is defined by the Secretary, from each site at which fuel

and waste is stored. The transportation plan must be developed in

accordance with DOE Order No. 460.2, which specifies DOE policies and requirements governing materials transportation and

packaging operations, and which generally requires compliance

with all applicable Federal, state, local and tribal requirements

governing materials transportation that are consistent with Federal requirements. The transportation plan must also be consistent

with the requirements stated in the Program Manager’s Guide.

Subsection (c)(2) specifies additional requirements that the shipping campaign transportation plan must satisfy. Specifically, subsection (c)(2)(A) requires that the transportation plan be fully integrated with State and tribal government notification, inspection

and emergency response plans along the primary route (including

any portion thereof that is a State-designated alternative route selected in accordance with DOT regulations) designated by the Secretary in accordance with subsection (d). Subsection (c)(2)(B) requires that the transportation plan be consistent with the principles and procedures developed for the safe transportation of

transuranic waste to the Waste Isolation Pilot Plant, unless the

Secretary demonstrates that a specific principle or procedures is inconsistent with a provision of this Act. Although the Committee believes that the principles and procedures developed by DOE, in conjunction with affected jurisdictions, for the shipment of waste to

WIPP provide an excellent model for the development of similar

principles and procedures governing shipments of fuel and waste

under this Act, it also recognizes that there are differences between

the WIPP program and the Integrated Management System in

terms of the materials to be shipped and the governing regulatory

regime. Accordingly, this subsection directs the Secretary to develop a shipping campaign transportation plan that is consistent

with the principles and procedures governing shipments to the

WIPP, but provides the Secretary the discretion to deviate from the

WIPP procedures if the Secretary demonstrates that a specific

WIPP principle or procedure is inconsistent with a provision of this

Act.
20

Subsection (d) provides standards and procedures that the Secretary must comply with in selecting shipping routes and modes.

This section is intended to enhance the safety of the transportation

by both rail and highway of spent nuclear fuel and high-level radioactive waste under this Act. These additional requirements are intended to be consistent with and supplement the existing regulatory regime governing fuel and waste shipments by the Secretary

under this Act.

Subsection (d)(1) requires the Secretary to evaluate the relative

safety of proposed shipping routes and shipping modes from each

origin point to the interim storage facility or repository with the

safety of alternative modes and routes.

Subsection (d)(2) requires that the evaluation of proposed routes

and modes be conducted consistent with applicable DOT and NRC

regulations. This provision makes clear that any proposed route or

mode selected by DOT must meet all applicable DOT and NRC regulations.

Subsection (d)(3) requires the Secretary, following the evaluation

of proposed routes and modes, to designate preferred shipping

routes and modes from each origin point of fuel and waste (including reactor sites and DOE facilities) to the interim storage facility

or repository. These preferred routes and modes also must comply

with DOT and NRC regulations.

Pursuant to subsection (c)(4), if the Secretary designates more

than one preferred shipping route, the Secretary must conduct an

evaluation to support the selection of a primary route from among

the preferred routes. The evaluation must consider, at a minimum,

historical accident rates, population, significant hazards, shipping

time, shipping distance, and mitigating measures such as limits on

the speed of shipments.

Subsection (d)(5) makes clear that, following selection of a primary shipping route (which, with respect to highway routes, would

include any alternative route designated by a State in accordance

with applicable DOT requirements) and mode, the Secretary must

use such primary route and mode except in cases of emergency. In

addition, if the Secretary selects a primary route for any reactor or

DOE facility, the Secretary may use that primary route to transport fuel and waste from any other reactor or DOE facility.

Subsection (d)(6) requires the Secretary to focus training and

technical assistance required under section 203(c) on primary shipping routes. Again, with respect to primary highway routes, such

training and assistance shall also be provided along the State-designated alternative portion of the route.

Subsection (d)(7) requires the Secretary of Transportation, within

one year of the date of enactment of the Act, to exercise authority

under existing law to promulgate a regulation establishing procedures for the selection of preferred routes for the transportation of

fuel and waste by rail. The Committee believes that a Federal rail

routing regulation, similar to the DOT’s regulation governing the

selection of highway routes for shipments of fuel and waste, would

provide necessary guidance to the Secretary in selecting and evaluating potential rail routes and further enhance the safety of these

shipments. However, recognizing that the current regulatory regime does provide requirements governing the rail transportation
21

of fuel and waste, and that this regime has proven successful in ensuring safe rail transportation of these materials, this section provides that during the period following the date of enactment of the

Act and the issuance of a final rail routing regulation, transportation of fuel and waste shall be conducted in accordance with the

regulatory requirements in effect on the date of enactment and the

requirements of this Act.

SECTION 203.—TRANSPORTATION REQUIREMENTS

Subsections (a) and (b) of section 203 reenact, with some conforming modifications, the provisions in the NWPA of 1982, as

amended, requiring NRC certification of packages used for shipments of fuel and waste under this Act, and the required provision

of advance notification to States and Tribal government of shipments in accordance with NRC regulations.

Subsection (c)(1)(A) reenacts, with some modifications, the provisions of the NWPA of 1982, as amended, requiring the Secretary

to provide technical and financial assistance to States and Indian

Tribes for training of public safety officials of appropriate units of

State, local, and tribal government. This provision clarifies that the

assistance and funds shall be made available directly to States and

Tribes, and that States shall allocate a portion of any funds provided to local governments. Technical assistance and funds must be

provided pursuant to the grant provision of subsection (c)(3).

Subsection (c)(2)(B) requires that the Secretary also provide technical assistance and funds for training directly to nonprofit employee organizations and joint labor-management organizations

that demonstrate experience in implementing and operating worker

health and safety training and education programs and demonstrate the ability to reach and involve in training programs

workers who are or will be directly engaged in the transportation

of fuel and waste, or emergency response or post-emergency response with respect to such transportation.

Subsection (c)(1)(C) specifies the scope and content of the training that must be provided under this section, and requires that the

training be consistent with training standards established by the

Secretary of Transportation under subsection (g) of this section.

The training must cover procedures required for the safe routine

transportation of fuel and waste, as well as procedures for dealing

with emergency response situations. In addition, the training must

include a training program for responding to emergency situations

occurring during the removal and transportation of fuel and waste,

the instruction of public safety officers in procedures for the command and control of the response, and instruction of radiological

protection and emergency medical personnel in response procedures.

Subsection (c)(2) provides that, with certain specified exceptions,

there shall be no shipments of fuel or waste through the jurisdiction of any State or reservation lands of any Tribe eligible for

grants under subsection (c)(3) unless technical assistance and

funds for dealing with safe routing transportation and emergency

response situations have been available to the State or Tribe for at

least two years prior to the shipments. This provision is consistent

with DOE’s current plans, which recommend that technical assist-
22

ance and funds be provided to States and Tribes approximately two

years prior to shipment. Under the exceptions, DOE may ship fuel

and waste where technical assistance and funds have not been

available for two years prior to the shipment where such shipment

is necessary due to an emergency (including the sudden and unforeseen closure of a highway or rail line or the sudden and

unforseen need to remove fuel from a reactor); the State or Tribe’s

refusal to accept technical assistance; or fraudulent actions which

violate federal law governing the expenditure of federal funds.

Subsection (c)(2) provides conditions that must be satisfied in the

event transportation of fuel and waste takes place pursuant to one

of the exceptions. The Secretary shall, prior to the shipment, hold

meetings in each State or Indian reservation through which the

shipping route passes in order to present initial shipment plans

and receive comments; shipments shall be escorted by DOE personnel trained in emergency response; and funds and DOE training resources shall be made available to States and Tribes along the

route no later than three months prior to the shipments. This subsection further provides that such shipments shall not exceed 1,000

MTU per year, and that no such shipments shall take place more

than four years after the effective date of the Act.

Subsection (c)(3) covers the provision of grants to implement this

section, which shall be made available under section 401(c)(2) of

the Act. Subsection (c)(3)(B) provides that the Secretary shall make

a grant of at least $150,000 to each State through the jurisdiction

of which and each Federally recognized Tribe through the reservation lands of which a shipment of fuel or waste will be made under

this Act for the purpose of developing a plan to prepare for such

shipments. Any such grant shall be made only to a State or Federally recognized Tribe that has the authority to respond to incidents

involving shipments of hazardous material.

Subsection (c)(3)(C) provides for grants to implement the plans

developed by the States and tribes with the grants provided under

subsection (c)(3)(B). Subsection (c)(3)(C)(i) provides that annual implementation grants shall be made to States and tribes that have

developed a plan for shipments. The Secretary is required, in submitting annual department budgets to Congress for the funding of

implementation grants, to be guided by the State and Tribal plans.

In addition, as part of the DOE’s annual budget requests, the Secretary shall report to Congress on the amount of funds requested

by the States and Tribes, the amount requested by the President

for implementation, and the rational for any discrepancies between

the two amounts.

Subsection (c)(3)(C)(ii) specifies the manner in which the Secretary is to allocate funds made available for grants in any fiscal

year: 25% shall be allocated to ensure minimum funding and program capability levels in all States and Tribes based on the plans

developed by such States and Tribes and 75% shall be allocated to

States and Tribes in proportion to the number of shipment miles

projected to be made in total shipments through each jurisdiction.

Subsection (c)(4) clarifies and provides that funds available

under paragraph (1) shall be made available to prepare for shipments to an interim storage facility or repository, regardless of
23

whether the interim storage facility or repository is operated by a

private entity or the DOE.

Subsection (d) requires that the Secretary conduct a program to

educate the public regarding the transportation of fuel and waste,

with an emphasis upon those States, units of local government, and

Tribes through whose jurisdiction the Secretary plans to transport

substantial amount of fuel or waste.

Subsection (e) specifies that any person that transports spent nuclear fuel or high-level waste pursuant to this Act under contract

to the Secretary, shall comply with all requirements governing

such transportation issued by Federal, State and local governments, and Indian tribes to the same extent that any person engaging in that transportation that is in or affects interstate commerce

would be required to comply with such requirements, as required

by 49 U.S.C. sec. 5126. That statutory provision is a section of the

Hazardous Materials Transportation Act that requires any person

under contract with the Federal Government that transports hazardous materials to comply with Federal, State and local, and tribal requirements (except a requirement preempted by Federal law)

in the same way as a private party would comply.

Subsection (f) provides that any person engaged in the interstate

commerce of spent nuclear fuel or high-level waste under contract

to the Secretary pursuant to this Act shall be subject to and comply

fully with the employee protections provisions of 49 U.S.C. 20109

and 49 U.S.C. 31105. Those sections protect employees of carriers

(49 U.S.C. 20109) and motor carriers (49 U.S.C. 31105) from retaliation for the refusal to work, providing certain conditions are satisfied, when confronted by a hazardous condition related to performance of the employee’s duties.

Subsection (g)(1) requires the Secretary of Transportation, no

later than 12 months following enactment of NWPA of 1997, pursuant to authority under other provisions of law, to promulgate training standards applicable to workers directly involved in the removal and transportation of spent nuclear fuel and high-level

waste. The training standards must specify minimum training

standards applicable to workers, including managerial personnel.

In addition, the regulation shall require that the employee possess

evidence of satisfaction of the applicable training standard before

the employee may be employed in the removal and transportation

of fuel and waste.

Subsection (g)(2) authorizes the Secretary of Transportation to

refrain from promulgating such training regulations if the Secretary determines that regulations promulgated by the Commission

establish adequate training standards for such workers. The DOT

and NRC are directed to work through their Memorandum of Understanding to ensure coordination of worker training standards

and to avoid duplicative regulation.

Subsection (g)(3) specified the minimum provisions required to be

included in the training standards including a specified minimum

number of hours of offsite instruction and actual field experience;

a requirement that onsite managerial personnel receive the same

training as workers as well as specialized training related to their

mangerial responsibilities; and provisions applicable to persons re-
24

sponsible for responding to and cleaning up emergency situations

occurring during the removal and transportation of fuel and waste.

SECTION 204.—INTERIM STORAGE

Subsection (a) instructs the Secretary to design, construct and

operate a facility for the interim storage of spent fuel and highlevel waste at the interim storage facility site, if the requirements

of subsection (b) are met. Section 2 of the Act defines interim storage facility site as the specific site within Area 25 of the Nevada

Test Site that is designated by the Secretary and withdrawn and

reserved in accordance with the Act for the location of the interim

storage facility. Procedures for withdrawal and reservation are

specified in section 207.

Subsection (a) also provides that the interim storage facility shall

be subject to licensing by the Commission pursuant to regulations

governing the licensing of independent spent fuel storage installations (ISFSIs), which regulations shall be amended by the Commission as necessary to implement the provisions of the Nuclear Waste

Policy Act of 1997. The intent of this provision is that the Secretary

be treated in like manner as a private applicant for an ISFSI license.

Section (b) requires the Secretary to proceed forthwith with all

activities necessary to begin accepting fuel and waste at the interim storage facility at the Yucca Mountain site by November 30,

1999, with the proviso that construction shall not begin on an interim storage facility at Yucca Mountain before December 31, 1998.

The bill provides for the delivery of an assessment of the viability

of the Yucca Mountain site to the President and Congress by the

Secretary six months before the construction can begin on the interim facility. If, based upon the information before him, the President determines, in his discretion, that Yucca Mountain is not suitable for development as a repository, then the Secretary shall cease

work on both the interim and permanent repository programs at

the Yucca Mountain site. The bill further provides that, if the

President makes such a determination, he shall have 18 months to

designate an interim storage facility site. If the President fails to

designate a site, or if a site he has designated has not been approved by Congress within two years of his determination, the Secretary is instructed to construct an interim storage facility at the

Yucca Mountain Site. This provision ensures that the construction

of an interim storage facility at the Yucca Mountain site will not

occur before the President and Congress have had an ample opportunity to review the technical assessment of the suitability of the

Yucca Mountain site for a permanent repository and to designate

an alternative site for interim storage based upon that technical information. However, the Committee believes that the Hanford Nuclear Reservation in the State of Washington would be an inappropriate location for interim storage of additional commercial spent

nuclear fuel and additional high-level waste. Therefore, this subsection also explicitly prohibits the President from selecting this

site as an alternative to the Nevada Test Site.

Subsection (c) requires that the design of the interim storage facility provide for the use of storage technologies licensed, approved,

or certified by the Commission for use at the interim storage facil-
25

ity as necessary to ensure compatibility between the interim storage facility and contract holders’ spent fuel and facilities. It also requires the Secretary to consent to an amendment to the contracts

to provide for reimbursement to contract holders for transportable

storage systems purchased by contract holders if the Secretary determines that it is cost-effective to use such systems as part of the

integrated management system, but precludes the Secretary from

expending funds to modify contract holder storage or transport systems or to seek additional regulatory approvals to use such systems. The intent of this requirement is to ensure that the interim

storage facility design is compatible with transportable storage

technologies currently being deployed at civilian nuclear power reactors and at any private storage facilities, and transportation

technologies that may be used to transport spent nuclear fuel from

such reactors to the interim storage facility.

Subsection (d) requires that the interim storage facility be licensed in two phases in order to commence operations no later

than November 30, 1999. It requires the Secretary, no later than

12 months after the date of enactment of the Act, to submit to the

NRC an application for a license for the first phase of the interim

storage facility. It specifies that the first phase license shall have

a term of 20 years, which shall be renewable for additional terms

upon application by the Secretary, and a capacity of not more than

15,000 MTU. It requires the NRC to issue a final decision on the

Secretary’s license application within 16 months of application submittal.

Subsection (d)(2) requires that the Environmental Report and

Safety Analysis Report submitted in support of the first phase license application be consistent with the scope of authority requested in the license application. The first phase storage facility

will be a simple storage facility, consisting primary of a concrete

pad and storage systems similar to those used at licensed ISFSIs

at reactor sites.

Subsection (d)(3) requires the Secretary to submit a license application for the second phase facility no later than 30 months after

enactment. This subsection specifies that the second phase facility

license shall authorize a storage capacity of 40,000 MTU. If the license for the permanent repository is not submitted by February

1, 2002, or fuel receipt operations do not begin at the repository by

January 17, 2010, the Act authorizes storage capacity of 60,000

MTU for the interim facility. It also requires that the second phase

of the interim storage facility commence operation by Dec. 31,

2002, shall have an initial term of up to 100 years, and shall be

renewable for additional terms upon application by the Secretary.

Subsection (e)(1) permits the Secretary to commence site preparation as soon as practicable following the date of enactment of the

Act, and to commence construction of each phase of the interim

storage facility subsequent to submittal of license application, but

authorizes NRC to issue an order requiring the Secretary to suspend construction based on a finding of unreasonable risk to public

health and safety and the environment. This provision must be

read in conjunction with section 204(b)(1), which prohibits any site

specific construction activities prior to December 31, 1998.
26

Notwithstanding any otherwise applicable licensing requirement,

subsection (e)(2) authorizes the Secretary to utilize any facility

owned by the Federal Government on the date of enactment of the

Act within the boundaries of the interim storage facility site during

the first phase of the interim facility. This provision is intended to

authorize the Secretary to use the existing Engine-Maintenance

and Disassembly (E–MAD) facility to handle individual spent fuel

assemblies.

Subsection (e)(3) provides that, subject to the establishment of

criteria and grant of authority necessary to store additional fuel

and waste, including spent fuel from naval reactors, once the Secretary has achieved the annual acceptance rate for spent nuclear

fuel from civilian nuclear power reactors established pursuant to

contracts executed prior to the date of enactment of the Act, the

Secretary shall accept additional fuel and waste, in an amount not

less than 25% of the difference between the contractual acceptance

rate and the actual emplacement rate for spent nuclear fuel from

civilian nuclear power reactors established under section 407(a) of

the Act. Provided, however, that a portion of the waste (not less

than 5%) that is accepted for emplacement by the Secretary in any

given year will be spent nuclear fuel of military origin and/or Department of Energy spent nuclear fuel and high-level radioactive

waste. This provision corrects possible emplacement scenarios

under other provisions of the bill which would have precluded emplacement of any military or DOE waste unless the Department

achieved certain triggering acceptance rates. This provision is not

intended, however, to direct the storage of any spent nuclear fuel

or high-level radioactive waste at the interim storage facility unless

its storage is within the scope of the Nuclear Regulatory Commission license issued for the interim storage facility.

Under some limited circumstances, this 5 percent requirement

might reduce the Secretary’s ability to also accept material from

permanently closed plants under section 204(e)(3). On this point,

the Committee notes that the Secretary may use the existing authority within the Standard Contract to accept on a priority basis

such spent fuel and waste from permanently closed plants so as to

alleviate or otherwise avoid this circumstance. The early acceptance of spent nuclear fuel and waste from permanently closed

plants will be cost effective for such utilities, and also add operational benefits and financial savings to the overall program by assuring a consistent and uniform supply of material at the interim

facility.

Subsection (f) clarifies that the Secretary’s and President’s actions in connection with the selection of an interim storage facility

site, the submittal of any license application and supporting documentation, the construction of a facility, and the use of any facility

at the site owned by the Federal Government, are preliminary decision making activities, and therefore not subject to judicial review,

and do not require any NEPA documentation. This subsection requires NRC to prepare an EIS in connection with any licensing decision, and specifies that the EIS need not consider matters decided

by the Act, including, need for an interim facility, time of availability, and site. This subsection directs NRC to ensure that the scope

of the EIS is consistent with the licensing action. Subsection (g)
27

specifies that judicial review of the NRC’s EIS shall be consolidated

with judicial review of its licensing action, and precludes a reviewing court from enjoining facility construction or operation except in

conjunction with final decision on licensing action.

These provisions reflect the decision to treat the Secretary like

a private applicant for an ISFSI license. A private applicant is required to submit an environmental report in support of a license

application that contains data that will be utilized by the Commission in preparing the EIS. The Secretary is required to prepare an

environmental report in accordance with the regulations governing

preparation of an environmental report by a private party. The responsibility to prepare an EIS appropriately lies with the Commission, the objective licensing agency, as opposed to the Secretary.

Because the site for the interim storage facility has been selected

by Congress, the Secretary’s only role in site selection is to choose

the specific location for the facility within the boundaries of the site

selected by Congress. The purpose of NEPA analyses is to aid agency decisions and since the Congress will have made certain decisions regarding the interim storage facility, as reflected in the Act,

no purpose would be served by NEPA analyses of these decisions.

Thus, an EIS is not necessary to support the Secretary’s site selection process.

Subsection (h) protects the NRC’s Waste Confidence decision by

providing that the Secretary’s obligation to construct and operate

an interim storage facility in accordance with the Act, and the Secretary’s obligation to develop an Integrated Management System in

accordance with the Act, shall provide sufficient and independent

grounds (in addition to grounds NRC has used in the past) for any

further NRC finding of reasonable assurance that fuel and waste

will be disposed of safely and on a timely basis or purposes of any

decision to grant or amend a reactor license.

Subsection (i) requires NRC, within 18 months of enactment, to

establish criteria (to the extent such criteria are not incorporated

in NRC regulations) for the storage in the interim storage facility

of spent fuel and high-level waste from shut-down reactors, spent

fuel and high-level waste from atomic energy defense activities,

and spent fuel from foreign research reactors (referred to as additional fuel and waste). It requires the Secretary, following establishment of such criteria, to seek authority, as necessary, to store

such additional fuel and waste. This subsection provides that neither the establishment of such criteria or request for authority to

store additional fuel and waste shall delay or otherwise affect, the

development, construction, licensing, or operation of the interim

storage facility.

Subsection (j) reenacts the provisions of the NWPA of 1982 that

authorized the NRC to establish, by rule, procedures for the licensing of any technology for the dry storage of spent nuclear fuel by

rule and without, to the maximum extent possible, the need for

site-specific approvals by the Commission. It protects the Commission’s procedures governing the licensing of independent spent fuel

storage installations, including the general license, by providing

that nothing in the Act shall affect such procedures, or any licenses

or approvals issued pursuant to such procedures, in effect on the

date of enactment of the Act.
28

SECTION 205.—PERMANENT DISPOSAL

Subsection (a) annuls and revokes the Secretary’s site characterization guidelines codified at 10 CFR Part 960. It requires the Secretary to continue with site characterization activities in accordance with the program approach, and to eliminate or modify any

site characterization activities designed to demonstrate suitability

under the guidelines. This provision is necessary to reflect the

changes in the Secretary’s responsibilities since the passage of the

NWPA of 1982. Section 112 of the NWPA, as enacted in 1982, required the Secretary to nominate at least 5 sites as suitable for

characterization for development as a repository, and to recommend 3 of the sites to the President for further characterization.

The nominations and recommendations were to be based, in part,

on the site suitability guidelines. Thus, the primary purpose of the

guidelines was to assist the Secretary in comparing and evaluating

the relative advantages and disadvantages of the various sites

under consideration. In 1987, Congress amended the NWPA to require the Secretary to characterize only the Yucca Mountain site

and to cease site characterization activities at all other sites under

consideration. However, Congress did not give the Secretary any direction as to the continued value of the site suitability guidelines.

As a result, the Secretary has designed the site characterization

program to enable the Secretary to reach a decision on site suitability as a precondition to preparing the license application. This

is an inappropriate use of the guidelines, and a waste of the Secretary’s limited resources. The relevant question is not whether the

Yucca Mountain site is suitable, but whether the site can satisfy

the Commission’s repository licensing regulations in 10 CFR Part

60. Thus, the bill expressly annuls and revokes the guidelines, and

in so doing makes clear that the Secretary is to focus the site characterization program solely on obtaining information necessary to

make a determination whether the site can satisfy applicable licensing standards.

Subsection (a)(3) requires the Secretary to submit a license application for the repository consistent with the schedule set forth in

the program approach, as modified to be consistent with the Act,

but no later than December 31, 2001. If, prior to the filing of the

application, the Secretary determines that the Yucca Mountain site

cannot satisfy the Commission’s repository licensing regulations,

the Secretary must terminate site characterization activities and

report to Congress within six months. This subsection requires the

Secretary to develop a repository design that maximizes repository

capacity.

Subsection (b) requires NRC, upon completion of the licensing

proceeding for the first phase of the interim storage facility, to

amend its repository licensing regulations as necessary to comply

with the Act, including the licensing process and release standard

established in the Act. This subsection establishes a three-step

process for licensing the repository: first, a construction authorization; followed by a license to dispose of waste in the repository; and

ultimately a license amendment permitting the Secretary to close

the repository. For each step, NRC must find that the action complies with the Secretary’s application, the Act, and the NRC’s regu-
29

lations, does not pose an unreasonable risk to public health and

safety, and is consistent with the common defense and security.

This subsection requires the Secretary to take those actions necessary and appropriate at the site to prevent any activity at the

site subsequent to repository closure that poses an unreasonable

risk of breaching the repository’s engineered or geologic barriers or

increasing exposure to members of the public beyond the limits established in this section.

Subsection (c) requires NRC to provide in its regulations for the

modification of the repository licensing procedure, as appropriate,

in the event that the Secretary seeks a license to permit the emplacement of waste in the repository, on a retrievable basis, as necessary to provide the Secretary with sufficient confirmatory data on

repository performance to reasonably confirm the basis for repository closure.

Subsection (d) establishes a standard that constitutes an overall

system performance standard. The subsection provides that the Environmental Protection Agency shall promulgate generally applicable standards for the protection of the public from releases of radiation from the repository consistent with the overall system performance standard, unless EPA determines that standard constitutes an unreasonable risk to health and safety. The overall system performance standard established for the repository prohibits

releases of radioactive material or radioactivity that would expose

an average member of the general population in the vicinity of the

Yucca Mountain site to an annual dose in excess of 100 millirems.

This is the maximum annual dose from manmade sources recommended by the International Commission on Radiological Protection, the National Council on Radiation Protection and Measurements and the NRC’s general public protection standard. An annual dose of 100 millirems is equivalent to the annual dose an individual receives from natural sources (often referred to as natural

background radiation) minus the exposure to radon, which varies

considerably depending on location. It is the limit for annual public

exposure that is recommended by the International Commission for

Radiological Protection (ICRP). See ISSN–0146–6453, ICRP Publication 60, ‘‘1990 Recommendations of the International Commission on Radiological Protection.’’

Subsection (d)(2) specifies the manner in which the NRC is to

apply the overall system performance standard. It requires the

Commission to issue the license if it finds reasonable assurance

that for the first 1,000 years following the commencement of repository operations, the overall system performance standard will be

met based on a probabilistic evaluation, as appropriate, of compliance with the overall system performance standard. The Commission is also required to analyze the overall system performance

through the use of probabilistic evaluations that use best estimate

assumptions, data, and methods for the period commencing after

the first 1,000 years of operation of the repository and terminating

at 10,000 years after the commencement of operation of the repository.

Subsection (d)(3) requires NRC to assume that, following repository closure the inclusion of engineered barriers and Secretary’s

post-closure actions at the site will thwart human intrusion suffi-
30

cient to prevent exposure of members of the public beyond limits

established in this section. It clarifies that an average member of

the general population in the vicinity of the Yucca Mountain site

means a person whose behavior represents the average for persons

living in the vicinity of the site. This subsection precludes NRC

consideration of catastrophic events where health consequences of

such events can be reasonably assumed to exceed the health consequences due to the impact of the events on repository performance.

Subsection (e) requires the Secretary to prepare an EIS in connection with the license application and to supplement such EIS as

appropriate, but relieves the Secretary of the need to consider the

need for the repository, or alternative sites or designs for the repository. It requires NRC, in licensing the repository, to adopt the Secretary’s EIS, and any supplements thereto, to the extent practicable.

SECTION 206.—LAND WITHDRAWAL

This section provides for withdrawal of the Interim Storage Facility Site, as designated by the Secretary within Area 25 of the Nevada Test Site, within 6 months of enactment of the Act through

the publication of the required legal description in the Federal Register and the filing of the map with the appropriate government entities. It provides for the withdrawal of the Yucca Mountain Site

at the same time that the Secretary submits a license application.

When the withdrawals become effective, this section transfers jurisdiction of any land within such sites to the Secretary, and reserves such sites for the Secretary’s exclusive use in connection

with construction and operation of an interim storage facility and

a repository. This section also specifies procedures the Secretary

must follow to depict the boundaries of the withdrawn sites.

TITLE III—LOCAL RELATIONS

Section 301 provides grants to any affected Indian tribe or affected unit of local government for purposes of oversight of activities at the Yucca Mountain site. The section also authorized financial and technical assistance to these parties, as well as payments

in lieu of taxes. Section 302 provides for an on-site representative

from the local government within whose jurisdiction the interim

storage facility or permanent repository site is located.

Section 303 confirms that acceptance of benefits under the Act

does not constitute an expression of consent to the siting of facilities under the Act. Section 304 clarifies that functing provided

under this title cannot be used to lobbying activities.

Section 305 provides for the conveyance of certain public lands

to Nye County, Nevada.

TITLE IV—FUNDING AND ORGANIZATION

SECTION 401.—PROGRAM FUNDING

This section reenacts, with some modifications, provisions of old

law with respect to the execution of contracts for the Secretary’s acceptance of title and possession, transportation, interim storage,
31

and disposal of fuel and waste, in return for payment of specified

fees to the Secretary. It clarifies that, subsequent to enactment of

the Nuclear Waste Policy Act of 1997, the contracts executed under

the NWPA of 1982 shall remain in effect, provided that the Secretary shall consent to an amendment to such contracts, as necessary, to implement the provisions of the NWPA of 1997. Thus,

the Secretary is not required to execute new contracts with current

contract holders. Rather, the Secretary is directed to consent to an

amendment to the existing contracts as necessary to reflect the

provisions of the bill.

Subsection (a) enacts the current ongoing fee of 1.0 mill per kilowatt hour generated and sold until September 30, 2003. Payment

of a 1.0 mill per kilowatt hour fee under the Contracts prior to enactment of this Act shall fulfill all fee obligations related to fuel

used to generate electricity prior to enactment. After October 1,

2003, the Act requires that the fee be collected as a ‘‘user fee,’’ i.e.,

the fees collected each year shall equal the level of appropriations

for that year. It reenacts the provisions of the NWPA of 1982 regarding the one-time fee for fuel used to generate electricity prior

to April 7, 1983, clarifies that payment of such fees prior to date

of enactment shall satisfy the one-time fee obligation. The subsection provides that all unpaid fees shall be paid by September 30,

2002, and provides that any future payments of such fees, including any interest due under the contracts, shall be made to the Nuclear Waste Fund.

Subsection (a)(4) requires the Secretary to review the fee annually to evaluate whether they, together with the existing balance

in the Nuclear Waste Fund, provide sufficient revenues to offset

program costs. In event the Secretary determines that the fees will

provide either insufficient or excessive revenues to recover program

costs, requires the Secretary to propose an adjustment of the fee

to ensure full cost recovery, and to transmit immediately the proposal for such an adjustment to both houses of Congress.

Subsection (b) reenacts with minor changes provisions of NWPA

of 1982 that prohibit NRC from issuing or renewing a license for

a utilization or production facility unless such person has executed

a contract with the Secretary or the Secretary affirms that such

person is negotiating such a contract. Similarly, it reenacts provisions of NWPA of 1982 prohibiting disposal of fuel in the repository

unless the generator or owner has executed a contract with the

Secretary. This subsection provides that the rights and duties of

contract holders are assignable.

Subsection (c) provides for continuation of the Waste Fund established under the NWPA of 1982, which shall consist of the existing

balance in the Waste Fund on the date of enactment; and all receipts proceeds, and recoveries realized due to fee payments and recoveries realized as a result of the investment of the balance in the

Waste Fund. It reenacts provisions of NWPA of 1982 that authorize

the Secretary of the Treasury to hold the Waste Fund and invest

proceeds. This subsection authorizes the Secretary to make expenditures for the Waste Fund only for purposes of the Integrated Management System.
32

SECTION 402.—OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT

This section reenacts provisions of the old law establishing the

OCRWM. It provides that Office shall be headed by the Director,

and specifies appointment procedure and pay level for Director.

SECTION 403.—FEDERAL CONTRIBUTION

This section requires the Secretary, within one year of enactment, to issue a final rule establishing the appropriate portion of

program costs allocable to the storage and/or disposal of spent nuclear fuel and/or high-level radioactive waste from atomic energy

defense activities, and spent nuclear fuel from foreign research reactors. It directs that such costs include (i) the costs associated

with research and development activities, and (ii) as appropriate,

interest on the principal amounts due by reference to the appropriate Treasury Bill rate as if the payments were made at a point

in time consistent with the payment dates for fuel and waste under

the contracts.

Subsection (b) authorizes appropriations from general revenues

to cover the costs, as determined by the Secretary in the rulemaking proceeding, of storing and/or disposing of waste and fuel

from atomic energy defense activities under the Integrated Management System and directs the Secretary to request such appropriations along with the Secretary’s requests for appropriations

from the Waste Fund.

Subsection (c) requires the Secretary to advise the Congress, on

an annual basis, of the amount of waste and fuel from atomic energy defense activities requiring management in the Integrated

Management System.

TITLE V—GENERAL AND MISCELLANEOUS PROVISIONS

SECTION 501.—COMPLIANCE WITH OTHER LAWS

This section provides that, if any law does not conflict with the

provisions of the Nuclear Waste Policy Act and the Atomic Energy

Act, that law will govern. State and local laws are preempted only

if those laws are inconsistent with or duplicative of the Nuclear

Waste Policy Act or the Atomic Energy Act.

SECTION 502.—JUDICIAL REVIEW OF AGENCY ACTIONS

This section reenacts provisions of old law regarding judicial review, but specifies that any specific judicial review provisions in

the Act take precedence over the more general provision.

SECTION 503.—LICENSING OF FACILITY EXPANSIONS AND

TRANSHIPMENTS

This section reenacts provision in old law regarding licensing

proceedings for expansion of spent nuclear fuel storage capacity at

the site of power reactors.

SECTION 504.—SITING A SECOND REPOSITORY

This section reenacts provisions in old law barring the Secretary

from developing a second repository without further authorization
33

and requiring the Secretary to report on the need for a second repository between 2007 and 2010.

SECTION 505.—FINANCIAL ARRANGEMENTS FOR LOW-LEVEL

RADIOACTIVE WASTE SITE CLOSURE

This section reenacts provision in old law authorizing the Secretary to assume ownership of low-level waste sites after their decommissioning.

SECTION 506.—NUCLEAR REGULATORY COMMISSION TRAINING

AUTHORITY

This section reenacts provisions in old law authorizing NRC to

issue regulations on nuclear power plant operator training.

SECTION 507.—EMPLACEMENT SCHEDULE

This section requires that the emplacement schedule shall be implemented in accordance with the acceptance priority ranking determined by the Department’s annual ‘‘Acceptance Priority Ranking’’ report. It requires that the Secretary’s spent fuel emplacement

rate shall be no less than 1,200 MTU in 1999 and 2000; 2,000 MTU

in 2001 and 2002; 2,700 MUT in 2003; and 3,000 MTU annual

thereafter.

In the event the Secretary is unable to being emplacement by

January 31, 1999 at the rates specified, or if the cumulative

amount accepted in any year thereafter is less than specified, provides as a mitigation measure that the Secretary is required to adjust the schedule upward such that within 5 years of the start of

emplacement, the total quantity emplaced is consistent with the

total quantity that would have been accepted if emplacement commenced in 1999 and thereafter the emplacement rate is equivalent

to the rate that would be in place if the Secretary had commenced

acceptance in 1999.

SECTION 508.—TRANSFER OF TITLE

This section provides that acceptance by the Secretary of any

spent fuel or high-level waste shall constitute a transfer of title to

the Secretary. Acceptance is defined as the Secretary’s act of taking

possession of the fuel or waste involved.

SECTION 509.—DECOMMISSIONING PILOT PROGRAM

This section authorizes the Secretary to establish a Decommissioning Pilot Program to decommission and decontaminate the sodium-cooled fast breeder experimental test-site reactor located in

northwest Arkansas. This section precludes the use of the Nuclear

Waste Fund to fund the Decommissioning Pilot Program.

SECTION 510.—WATER RIGHTS

This section clarifies that nothing in the Act constitutes a Federal reservation of water or water rights. The section further provides that the Federal Government may acquire and use water

rights pursuant to the requirements of the State of Nevada.
34

TITLE VI—NUCLEAR WASTE TECHNICAL REVIEW BOARD

Section 603 re-enacts the Board’s functions as they are in the

NWPA of 1982. However, the Committee cautions the Board that

it should be certain that its activities and those of its staff and contractors remain within the bounds of this provision and not on subjects that such a Board was not constituted for or well suited to review.

Section 604 re-enacts the Board’s investigatory powers as they

are in the NWPA of 1982. This includes authority to hold hearings,

take testimony, receive evidence, etc. It also includes requirement

that the Secretary or any contractor of the Secretary shall provide

the Board with such records, files, papers, data, etc. that the Board

deems necessary in response to its inquiries. However, the Commission reminds the Board that its function to evaluate the Secretary’s activities as described in section 603 is best carried out in

a manner that does not interfere with the Secretary’s ability to

carry out these functions.

COST AND BUDGETARY CONSIDERATIONS

In compliance with paragraph 11(a) of the rule XXV of the

Standing Rules of the Senate, the Congressional Budget Office cost

estimate has been requested but was not received at the time the

report was filed. When the report is available, the Chairman will

request that it be printed in the Congressional Record for the advice of the Senate.

FEDERAL MANDATE EVALUATION

The Congressional Budget Office Federal mandate evaluation

has been requested but was not received at the time the report was

filed. When the report is available, the chairman will request that

it be printed in the Congressional Record for the advice of the Senate.

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing

Rules of the Senate, the Committee makes the following evaluation

of the regulatory impact which would be incurred in implementing

S. 104. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses above those in

existing law.

No personal information would be collected in administering the

program. Therefore, there would be no impact on personal privacy.

There are not likely to be significant paperwork requirements for

the Department of Energy above those required by existing law.
(35)

Each of us, whether he or she voted for or against reporting S.

104, agrees on the need to solve the nuclear waste problem. We do

not dispute the magnitude of the problem, the financial burden it

imposes on electric utilities, or the need for the Federal Government to honor its contractual commitment to the utilities to dispose

of their nuclear waste. The issue that separates us from our Republican colleagues is whether S. 104 is the best solution.

In 1982, after four years of debate, Congress decided that nuclear

waste should be buried in a deep geologic repository, at a site selected on the basis of scientific merit. In 1987, Congress chose

Yucca Mountain as the most promising of the candidate sites and

focused the Department of Energy’s scientific investigations there.

The soundness of those decisions, while often questioned, has never

been refuted.

Considerable progress has been made toward completing the necessary investigations, but the program is years behind schedule.

The Department of Energy will—cannot—meet its contractual

deadline of January 31, 1998 to begin picking up nuclear waste

from the utilities. The reasons for this delay are many and varied.

But Congress itself bears some measure of responsibility because

it has not given the program the money it needed, the President

requested, or the utilities contributed.

The failure to meet the contractual deadline is causing considerable hardship and understandable frustration among the utilities

generating the waste. They want the Government to take the problem off their hands, they want the Government to do it now, and

Senators want to oblige.

We are, however, designing a repository to last for millennia. Immensely complex questions on the frontiers of scientific knowledge

must be answered before we will know whether the repository will

be safe, not just for ourselves and our children, but for generations

yet unborn. Collecting and analyzing the geological and

hydrological evidence, and doing it properly, takes time. Precipitous

action now could lead to unfathomable consequences later.

S. 104 is a short-term fix for the utilities at the expense of the

long-term solution. It prejudges the scientific investigations by designating Yucca Mountain as the interim storage site before we

know whether it is suitable for the repository. It diverts resources

from the repository to interim storage, making completion of the repository by 2010 less likely. Indeed, by setting up a storage facility

to hold indefinitely twice the amount of waste generated by all the

utilities in the last 40 years, S. 104 invites a future Congress to

abandon the repository entirely.

Moreover, S. 104 does nothing to provide the nuclear waste program adequate funds in the immediate future. Such relief as the

bill provides is postponed for six years, until September 2003. In

the meantime, the bill revokes the Secretary of Energy’s current

authority to increase fee collections to ensure that the nuclear in-
36

dustry, rather than the taxpayer, pays the full cost of disposing of

the industry’s wastes.

In addition, S. 104 imposes on the Federal Government new obligations that cannot be met. Under current law, the utilities are responsible for managing their own wastes until the Department of

Energy can begin disposing of them in the repository. S. 104 transfers this obligation to the Department and gives it only until November 30, 1999 to do it. This deadline cannot possibly be met and

members of the Committee know it.

During Committee consideration of S. 104, Senator Bingaman offered amendments to cure each of these defects. Regrettably, our

Republican colleagues voted in block to reject each of them. The

President has authorized Secretary Pen ̃ a to work with us to craft

a compromise, but Republican members of the Committee delayed

the Secretary’s confirmation until the bill was being reported. The

President has said that he would veto any bill siting an interim

storage facility at Yucca Mountain before the site is found viable,

but the Republicans have pursued a strategy aimed at overriding

the President’s veto rather than trying to accommodate his legitimate concerns.

The nation’s nuclear waste policy should not be the subject of

partisan strife. The original Nuclear Waste Policy Act was first proposed by a Democratic President, but was signed into law by a Republican one. It was passed by a Democratic House and a Republican Senate. Its implementation has required, and will continue to

require, the active bipartisan support of Republicans and Democrats alike, both in Congress and in the Executive Branch, for decades to come. It can only succeed in the long run through consensus and cooperation, not confrontation and coercion.

Some of us could not vote to report S. 104 in its present form.

Some of us were willing to report it as it is in the hope that we

can improve it on the Senate floor. But all of us agree that S. 104

should not pass the Senate without major improvement.

DALE BUMPERS.

WENDELL H. FORD.

JEFF BINGAMAN.

DANIEL K. AKAKA.

TIM JOHNSON.

MARY L. LANDRIEU.
(37)

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, changes in existing law made by the bill S.

104, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is

printed in italic, existing law in which no change is proposed is

shown in roman):

NUCLEAR WASTE POLICY ACT OF 1982

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

øSHORT TITLE AND TABLE OF CONTENTS

øSECTION 1. This Act may be cited as the ‘‘Nuclear Waste Policy

Act of 1982’’.

øTABLE OF CONTENTS

øSec. 1. Short title and table of contents.

øSec. 2. Definitions.

øSec. 3. Separability.

øSec. 4. Territories and possessions.

øSec. 5. Ocean disposal.

øSec. 6. Limitation on spending authority.

øSec. 7. Protection of classified national security information.

øSec. 8. Applicability.

øSec. 9. Applicability.

øTITLE I—DISPOSAL AND STORAGE OF HIGH-LEVEL RADIOACTIVE WASTE, SPENT NUCLEAR FUEL,

AND LOW-LEVEL RADIOACTIVE WASTE

øSec. 101. State and affected Indian tribe participation in development of proposed repositories for defense

waste.

øSUBTITLE A—REPOSITORIES FOR DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL

øSec. 111. Findings and purposes.

øSec. 112. Recommendation of candidate sites for site characterization.

øSec. 113. Site characterization.

øSec. 114. Site approval and construction authorization.

øSec. 115. Review of repository site selection.

øSec. 116. Participation of States.

øSec. 117. Consultation with States and Indian tribes.

øSec. 118. Participation of Indian tribes.

øSec. 119. Judicial review of agency actions.

øSec. 120. Expedited authorizations.

øSec. 121. Certain standards and criteria.

øSec. 122. Disposal of spent nuclear fuel.

øSec. 123. Title to material.

øSec. 124. Consideration of effect of acquisition of water rights.

øSec. 125. Termination of certain provisions.

øSUBTITLE B—INTERIM STORAGE PROGRAM

øSec. 131. Findings and purposes.

øSec. 132. Available capacity for interim storage of spent nuclear fuel.

øSec. 133. Interim at-reactor storage.

øSec. 134. Licensing of facility expansions and transshipments.

øSec. 135. Storage of spent nuclear fuel.

øSec. 136. Interim Storage Fund.

øSec. 137. Transportation.

øSUBTITLE C—MONITORED RETRIEVABLE STORAGE

øSec. 141. Monitored retrievable storage.

øSec. 142. Authorization of monitored retrievable storage.

øSec. 143. Monitored Retrievable Storage Commission.

øSec. 144. Survey.

øSec. 145. Site selection.
38

øSec. 146. Notice of disapproval.

øSec. 147. Benefits agreement.

øSec. 148. Construction authorization.

øSec. 159. Financial assistance.

øSUBTITLE D—LOW-LEVEL RADIOACTIVE WASTE

øSec. 151. Financial arrangements for site closure.

øSUBTITLE E—REDIRECTION OF THE NUCLEAR WASTE PROGRAM

øSec. 160. Selection of Yucca Mountain site.

øSec. 161. Siting a second repository.

øSUBTITLE F—BENEFITS

øSec. 170. Benefits agreements.

øSec. 171. Content of agreements.

øSec. 172. Review panel.

øSec. 173. Termination.

øSUBTITLE G—OTHER BENEFITS

øSec. 174. Consideration in siting facilities.

øSec. 175. Report.

øSUBTITLE H—TRANSPORTATION

øSec. 180. Transportation.

øTITLE II—RESEARCH, DEVELOPMENT, AND DEMONSTRATION REGARDING DISPOSAL OF HIGHLEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL

øSec. 211. Purpose.

øSec. 212. Applicability.

øSec. 213. Identification of sites.

øSec. 214. Siting research and related activities.

øSec. 215. Test and evaluation facility siting review and reports.

øSec. 216. Federal agency actions.

øSec. 217. Research and development on disposal of high-level radioactive waste.

øSec. 218. Research and development on spent nuclear fuel.

øSec. 219. Payments to States and affected Indian tribes.

øSec. 220. Study of research and development needs for monitored retrievable storage proposal.

øSec. 221. Judicial review.

øSec. 222. Research on alternatives for the permanent disposal of high-level radioactive waste.

øSec. 223. Technical assistance to non-nuclear weapon states in the field of spent fuel storage and disposal.

øSec. 224. Subseabed disposal.

øTITLE III—OTHER PROVISIONS RELATING TO RADIOACTIVE WASTE

øSec. 301. Mission plan.

øSec. 302. Nuclear Waste Fund.

øSec. 303. Alternate means of financing.

øSec. 304. Office of Civilian Radioactive Waste Management.

øSec. 305. Location of test and evaluation facility.

øSec. 306. Nuclear Regulatory Commission training authorization.

øTITLE IV—NUCLEAR WASTE NEGOTIATOR

øSec. 401. Definition.

øSec. 402. The Office of Nuclear Waste Negotiator.

øSec. 403. Duties of the Negotiator.

øSec. 404. Environmental assessment of sites.

øSec. 405. Site characterization; licensing.

øSec. 406. Monitored retrievable storage.

øSec. 407. Environmental impact statement.

øSec. 408. Administrative powers of the Negotiator.

øSec. 409. Cooperation of other departments and agencies.

øSec. 410. Termination of the office.

øSec. 411. Authorization of appropriations.

øTITLE V—NUCLEAR WASTE TECHNICAL REVIEW BOARD

øSec. 501. Definitions.

øSec. 502. Nuclear Waste Technical Review Board.

øSec. 503. Functions.

øSec. 504. Investigatory powers.

øSec. 505. Compensatory of members.

øSec. 506. Staff.

øSec. 507. Support services.

øSec. 508. Report.

øSec. 509. Authorization of appropriations.

øSec. 510. Termination of the Board.

øDEFINITIONS

øSEC. 2. For purposes of this Act:

ø(1) The term ‘‘Administrator’’ means the Administrator of

the Environmental Protection Agency.

ø(2) The term ‘‘affected Indian tribe’’ means any Indian

tribe—
39

ø(A) within whose reservation boundaries a monitored

retrievable storage facility, test and evaluation facility, or

a repository for high-level radioactive waste or spent fuel

is proposed to be located;

ø(B) whose federally defined possessory or usage rights

to other lands outside of the reservation’s boundaries arising out of congressionally ratified treaties may be substantially and adversely affected by the locating of such a facility: Provided, That the Secretary of the Interior finds,

upon the petition of the appropriate governmental officials

of the tribe, that such effects are both substantial and adverse to the tribe;

ø(3) The term ‘‘atomic energy defense activity’’ means any activity of the Secretary performed in whole or in part in carrying out any of the following functions:

ø(A) naval reactors development;

ø(B) weapons activities including defense inertial confinement fusion;

ø(C) verification and control technology;

ø(D) defense nuclear materials production;

ø(E) defense nuclear waste and materials by-products

management;

ø(F) defense nuclear materials security and safeguards

and security investigations; and

ø(G) defense research and development.

ø(4) The term ‘‘candidate site’’ means an area, within a geologic and hydrologic system, that is recommended by the Secretary under section 112 for site characterization, approved by

the President under section 112 for site characterization, or

undergoing site characterization under section 113.

ø(5) The term ‘‘civilian nuclear activity’’ means any atomic

energy activity other than an atomic energy defense activity.

ø(6) The term ‘‘civilian nuclear power reactor’’ means a civilian nuclear powerplant required to be licensed under section

103 or 104 b. of the Atomic Energy Act of 1954 (42 U.S.C.

2133, 2134(b)).

ø(7) The term ‘‘Commission’’ means the Nuclear Regulatory

Commission.

ø(8) The term ‘‘Department’’ means the Department of Energy.

ø(9) The term ‘‘disposal’’ means the emplacement in a repository of high-level radioactive waste, spent nuclear fuel, or other

highly radioactive material with no foreseeable intent of recovery, whether or not such emplacement permits the recovery of

such waste.

ø(10) The terms ‘‘disposal package’’ and ‘‘package’’ mean the

primary container that holds, and is in contact with, solidified

high-level radioactive waste, spent nuclear fuel, or other radioactive materials, and any overpacks that are emplaced at a repository.

ø(11) The term ‘‘engineered barriers’’ means manmade components of a disposal system designed to prevent the resale of

radionuclides into the geologic medium involved. Such term includes the high-level radioactive waste form, high-level radio-
40

active waste canisters, and other materials placed over and

around such canisters.

ø(12) The term ‘‘high-level radioactive waste’’ means—

ø(A) the highly radioactive material resulting from the

reprocessing of spent nuclear fuel, including liquid waste

produced directly in reprocessing and any solid material

derived from such liquid waste that contains fission products in sufficient concentrations; and

ø(B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.

ø(13) The term ‘‘Federal agency’’ means any Executive agency, as defined in section 105 of title 5, United States Code.

ø(14) The term ‘‘Governor’’ means the chief executive officer

of a State.

ø(15) The term ‘‘Indian tribe’’ means any Indian tribe, band,

nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the

Secretary of the Interior because of their status as Indians, including any Alaska Native village, as defined in section 3(c) of

the Alaska Native Claims Settlement Act (43 U.S.C. 1602(c)).

ø(16) The term ‘‘low-level radioactive waste’’ means radioactive material that—

ø(A) is not high-level radioactive waste, spent nuclear

fuel, transuranic waste, or by-product material as defined

in section 11e(2) of the Atomic Energy Act of 1954 (42

U.S.C. 2014(e)(2)); and

ø(B) the Commission, consistent with existing law, classifies as low-level radioactive waste.

ø(17) The term ‘‘Office’’ means the Office of Civilian Radioactive Waste Management established in section 305.

ø(18) The term ‘‘repository’’ means any system licensed by

the Commission that is intended to be used for, or may be used

for, the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel, whether or not such system is designed to permit the recovery, for a limited period

during initial operation, of any materials placed in such system. Such term includes both surface and subsurface areas at

which high-level radioactive waste and spent nuclear fuel handling activities are conducted.

ø(19) The term ‘‘reservation’’ means—

ø(A) any Indian reservation or dependent Indian community referred to in clause (a) or (b) of section 1151 of title

18, United States Code; or

ø(B) any land selected by an Alaska Native village or regional corporation under the provisions of the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).

ø(20) The term ‘‘Secretary’’ means the Secretary of Energy.

ø(21) The term ‘‘site characterization’’ means—

ø(A) siting research activities with respect to a test and

evaluation facility at a candidate site; and

ø(B) activities, whether in the laboratory or in the field,

undertaken to establish the geologic condition and the

ranges of the parameters of a candidate site relevant to
41

the location of a repository, including borings, surface excavations, excavations of exploratory shafts, limited subsurface lateral excavations and borings, and in situ testing

needed to evaluate the suitability of a candidate site for

the location of a repository, but not including preliminary

borings and geophysical testing needed to assess whether

site characterization should be undertaken.

ø(22) The term ‘‘siting research’’ means activities, including

borings, surface excavations, and in situ testing, to determine

the suitability of a site for a test and evaluation facility.

ø(23) The term ‘‘spent nuclear fuel’’ means fuel that has been

withdrawn from a nuclear reactor following irradiation, the

constituent elements of which have not been separated by reprocessing.

ø(24) The term ‘‘State’’ means each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa, the Northern Mariana

Islands, the Trust Territory of the Pacific Islands, and any

other territory or possession of the United States.

ø(25) The term ‘‘storage’’ means retention of high-level radioactive waste, spent nuclear fuel, or transuranic waste with the

intent to recover such waste or fuel for subsequent use, processing, or disposal.

ø(26) The term ‘‘Storage Fund’’ means the Interim Storage

Fund established in section 137(c).

ø(27) The term ‘‘test and evaluation facility’’ means an atdepth, prototypic, underground cavity with subsurface lateral

excavations extending from a central shaft that is used for research and development purposes, including the development

of data and experience for the safe handling and disposal of solidified high-level radioactive waste, transuranic waste, or

spent nuclear fuel.

ø(28) The term ‘‘unit of general local government’’ means any

borough, city, county, parish, town, township, village, or other

general purpose political subdivision of a State.

ø(29) The term ‘‘Waste Fund’’ means the Nuclear Waste

Fund established in section 302(c).

ø(30) The term ‘‘Yucca Mountain site’’ means the candidate

site in the State of Nevada recommended by the Secretary to

the President under section 112(b)(1)(B) on May 27, 1986.

ø(31) The term ‘‘affected unit of local government’’ means the

unit of local government with jurisdiction over the site of a repository or a monitored retrievable storage facility. Such term

may, at the discretion of the Secretary, include units of local

government that are contiguous with such unit.

ø(32) The term ‘‘Negotiator’’ means the Nuclear Waste Negotiator.

ø(33) As used in title IV, the term ‘‘Office’’ means the Office

of the Nuclear Waste Negotiator established under title IV of

this Act.

ø(34) The term ‘‘monitored retrievable storage facility’’

means the storage facility described in section 141(b)(1).
42

øSEPARABILITY

øSEC. 3. If any provision of this Act, or the application of such

provision to any person or circumstance, is held invalid, the remainder of this Act, or the application of such provision to persons

or circumstances other than those as to which it is held invalid,

shall not be affected thereby.

øTERRITORIES AND POSSESSIONS

øSEC. 4. Nothing in this Act shall be deemed to repeal, modify,

or amend the provisions of section 605 of the Act of March 12, 1980

(48 U.S.C. 1491).

øOCEAN DISPOSAL

øSEC. 5. Nothing in this Act shall be deemed to affect the Marine

Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401

et seq.).

øLIMITATION ON SPENDING AUTHORITY

øSEC. 6. The authority under this Act to incur indebtedness, or

enter into contracts, obligating amounts to be expended by the Federal Government shall be effective for any fiscal year only to such

extent or in such amounts as are provided in advance by appropriation Acts.

øPROTECTION OF CLASSIFIED NATIONAL SECURITY INFORMATION

øSEC. 7. Nothing in this Act shall require the release or disclosure to any person or to the Commission of any classified national

security information.

øAPPLICABILITY

øSEC. 8. (a) ATOMIC ENERGY DEFENSE ACTIVITIES.—Subject to

the provisions of subsection (c), the provisions of this Act shall not

apply with respect to any atomic energy defense activity or to any

facility used in connection with any such activity.

ø(b) EVALUATION BY PRESIDENT.—(1) Not later than 2 years after

the date of the enactment of this Act, the President shall evaluate

the use of disposal capacity at one or more repositories to be developed under subtitle A of title I for the disposal of high-level radioactive waste resulting from atomic energy defense activities. Such

evaluation shall take into consideration factors relating to cost efficiency, health and safety, regulation, transportation, public acceptability, and national security.

ø(2) Unless the President finds, after conducting the evaluation

required in paragraph (1), that the development of a repository for

the disposal of high-level radioactive waste resulting from atomic

energy defense activities only is required, taking into account all of

the factors described in such subsection, the Secretary shall proceed promptly with arrangement for the use of one or more of the

repositories to be developed under subtitle A of title I of the disposal of such waste. Such arrangements shall include the allocation

of costs of developing, constructing, and operating this repository or

repositories. The costs resulting from permanent disposal of high-
43

level radioactive waste from atomic energy defense activities shall

be paid by the Federal Government, into the special account established under section 302.

ø(3) Any repository for the disposal of high-level radioactive

waste resulting from atomic energy defense activities only shall (A)

be subject to licensing under section 202 of the Energy Reorganization Act of 1973 (42 U.S.C. 5842); and (B) comply with all requirements of the Commission for the siting, development, construction,

and operation of a repository.

ø(c) APPLICABILITY TO CERTAIN REPOSITORIES.—The provisions of

this Act shall apply with respect to any repository not used exclusively for the disposal of high-level radioactive waste or spent nuclear fuel resulting from atomic energy defense activities, research

and development activities of the Secretary, or both.

øAPPLICABILITY

øSEC. 9. TRANSPORTATION.—Nothing in this Act shall be construed to affect Federal, State, or local laws pertaining to the

transportation of spent nuclear fuel or high-level radioactive waste.

øTITLE I—DISPOSAL AND STORAGE OF HIGH-LEVEL RADIOACTIVE WASTE, SPENT NUCLEAR FUEL, AND LOW-LEVEL

RADIOACTIVE WASTE

øSTATE AND AFFECTED INDIAN TRIBE PARTICIPATION IN

DEVELOPMENT OF PROPOSED REPOSITORIES FOR DEFENSE WASTE

øSEC. 101. (a) NOTIFICATION TO STATES AND AFFECTED INDIAN

TRIBES.—Notwithstanding the provisions of section 8, upon any decision by the Secretary or the President to develop a repository for

the disposal of high-level radioactive waste or spent nuclear fuel resulting exclusively from atomic energy defense activities, research

and development activities of the Secretary, or both, and before

proceeding with any site-specific investigations with respect to such

repository, the Secretary shall notify the Governor and legislature

of the State in which such repository is proposed to be located, or

the governing body of the affected Indian tribe on whose reservation such repository is proposed to be located, as the case may be,

of such decision.

ø(b) PARTICIPATION OF STATES AND AFFECTED INDIAN TRIBES.—

Following the receipt of any notification under subsection (a), the

State or Indian tribe involved shall be entitled, with respect to the

proposed repository involved, to rights of participation and consultation identical to those provided in sections 115 through 118,

except that any financial assistance authorized to be provided to

such State or affected Indian tribe under section 116(c) or 118(b)

shall be made from amounts appropriated to the Secretary for purposes of carrying out this section.

øSUBTITLE A—REPOSITORIES FOR DISPOSAL OF HIGH-LEVEL

RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL

øFINDINGS AND PURPOSES

øSEC. 111. (a) FINDINGS.—The Congress finds that—
44

ø(1) radioactive waste creates potential risks and requires

safe and environmentally acceptable methods of disposal;

ø(2) a national problem has been created by the accumulation of (A) spent nuclear fuel from nuclear reactors; and (B) radioactive waste from (i) reprocessing of spent nuclear fuel; (ii)

activities related to medical research, diagnosis, and treatment; and (iii) other sources;

ø(3) Federal efforts during the past 30 years to devise a permanent solution to the problems of civilian radioactive waste

disposal have not been adequate;

ø(4) while the Federal Government has the responsibility to

provide for the permanent disposal of high-level radioactive

waste and such spent nuclear fuel as may be disposed of in

order to protect the public health and safety and the environment, the costs of such disposal should be the responsibility of

the generators and owners of such waste and spent fuel;

ø(5) the generators and owners of high-level radioactive

waste and spent nuclear fuel have the primary responsibility

to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste

and spent fuel is accepted by the Secretary of Energy in accordance with the provisions of this Act;

ø(6) State and public participation in the planning and development of repositories is essential in order to promote public

confidence in the safety of disposal of such waste and spent

fuel; and

ø(7) high-level radioactive waste and spent nuclear fuel have

become major subjects of public concern, and appropriate precautions must be taken to ensure that such waste and spent

fuel do not adversely affect the public health and safety and

the environment for this or future generations.

ø(b) PURPOSES.—The purposes of this subtitle are—

ø(1) to establish a schedule for the siting, construction, and

operation of repositories that will provide a reasonable assurance that the public and the environment will be adequately

protected from the hazards posed by high-level radioactive

waste and such spent nuclear fuel as may be disposed of in a

repository;

ø(2) to establish the Federal responsibility, and a definite

Federal policy, for the disposal of such waste and spent fuel;

ø(3) to define the relationship between the Federal Government and the State governments with respect to the disposal

of such waste and spent fuel; and

ø(4) to establish a Nuclear Waste Fund, composed of payments made by the generators and owners of such waste and

spent fuel, that will ensure that the costs of carrying out activities relating to the disposal of such waste and spent fuel

will be borne by the persons responsible for generating such

waste and spent fuel.

øRECOMMENDATION OF CANDIDATE SITES FOR SITE

CHARACTERIZATION

øSEC. 112. (a) GUIDELINES.—Not later than 180 days after the

date of the enactment of this Act, the Secretary, following consulta-
45

tion with the Council on Environmental Quality, the Administrator

of the Environmental Protection Agency, the Director of the Geological Survey, and interested Governors, and the concurrence of

the Commission shall issue general guidances for the recommendation of sites for repositories. Such guidelines shall specify detailed

geologic considerations that shall be primary criteria for the selection of sites in various geologic media. Such guidelines shall specify

factors that qualify or disqualify any site from development as a repository, including factors pertaining to the location of valuable

natural resources, hydrology, geophysics, seismic activity, and

atomic energy defense activities, proximity to water supplies, proximity to populations, the effect upon the rights of users of water,

and proximity to components of the National Park System, the National Wildlife Refuge System, the National Wild and Scenic Rivers

System, the National Wilderness Preservation System, or National

Forest Lands. Such guidelines shall take into consideration the

proximity to sites where high-level radioactive waste and spent nuclear fuel is generated or temporarily stored and the transportation

and safety factors involved in moving such waste to a repository.

Such guidelines shall specify population factors that will disqualify

any site from development as a repository if any surface facility of

such repository would be located (1) in a highly populated area; or

(2) adjacent to an area 1 mile by 1 mile having a population of not

less than 1,000 individuals. Such guidelines also shall require the

Secretary to consider the cost and impact of transporting to the repository site the solidified high-level radioactive waste and spent

fuel to be disposed of in the repository and the advantages of regional distribution in the siting of repositories. Such guidelines

shall require the Secretary to consider the various geologic media

in which sites for repositories may be located and, to the extent

practicable, to recommend sites in different geologic media. The

Secretary shall use guidelines established under this subsection in

considering candidate sites for recommendation under subsection

(b). The Secretary may revise such guidelines from time to time,

consistent with the provisions of this subsection.

ø(b) RECOMMENDATION BY SECRETARY TO THE PRESIDENT.—(1)(A)

Following the issuance of guidelines under subsection (a) and consultation with the Governors of affected States, the Secretary shall

nominate at least 5 sites that he determines suitable for site characterization for selection of the first repository site.

ø(B) Subsequent to such nomination, the Secretary shall recommend to the President 3 of the nominated sites not later than

January 1, 1985 for characterization as candidate sites.

ø(C) Such recommendations under subparagraph (B) shall be

consistent with the provisions of section 305.

ø(D) Each nomination of a site under this subsection shall be accompanied by an environmental assessment, which shall include a

detailed statement of the basis for such recommendation and of the

probable impacts of the site characterization activities planned for

such site, and a discussion of alternative activities relating to site

characterization that may be undertaken to avoid such impacts.

Such environmental assessment shall include—
46

ø(i) an evaluation by the Secretary as to whether such site

is suitable for site characterization under the guidelines established under subsection (a);

ø(ii) an evaluation by the Secretary as to whether such site

is suitable for development as a repository under each such

guideline that does not require site characterization as a prerequisite for application of such guideline;

ø(iii) an evaluation by the Secretary of the effects of the site

characterization activities at such site on the public health and

safety and the environment;

ø(iv) a reasonable comparative evaluation by the Secretary of

such site with other sites and locations that have been considered;

ø(v) a description of the decision process by which such site

was recommended; and

ø(vi) an assessment of the regional and local impacts of locating the proposed repository at such site.

ø(E)(i) 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, United States Code, and section 119. Such judicial review

shall be limited to the sufficiency of such environmental assessment with respect to the items described in clauses (i) through (vi)

of subparagraph (E).

ø(F) Each environmental assessment prepared under this paragraph shall be made available to the public.

ø(G) Before nominating a site, the Secretary shall notify the Governor and 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, of such nomination and the basis for

such nomination.

ø(2) Before nominating any site the Secretary shall hold public

hearings in the vicinity of such site to inform the residents of the

area in which such site is located of the proposed nomination of

such site and to receive their comments. At such hearings, the Secretary shall also solicit and receive any recommendations of such

residents with respect to issues that should be addressed in the environmental assessment described in paragraph (1) and the site

characterization plan described in section 113(b)(1).

ø(3) In evaluating the sites nominated under this section prior to

any decision to recommend a site as a candidate site, the Secretary

shall use available geophysical, geologic, geochemical and hydrologic, and other information and shall not conduct any preliminary

borings or excavations at a site unless (i) such preliminary boring

or excavation activities were in progress upon the date of enactment of this Act or (ii) the Secretary certifies that such available

information from other sources, in the absence of preliminary borings or excavations, will not be adequate to satisfy applicable requirements of this Act or any other law: Provided, That preliminary borings or excavations under this section shall not exceed a

diameter of 6 inches.

ø(c) PRESIDENTIAL REVIEW OF RECOMMENDED CANDIDATE

SITES.—(1) The President shall review each candidate site recommendation made by the Secretary under subsection (b). Not
47

later than 60 days after the submission by the Secretary of a recommendation of a candidate site, the President, in his discretion,

may either approve or disapprove such candidate site, and shall

transmit any such decision to the Secretary and to either the Governor and legislature of the State in which such candidate site is

located, or the governing body of the affected Indian tribute where

such candidate site is located, as the case may be. If, during such

60-day period, the President fails to approve or disapprove such

candidate site, or fails to invoke his authority under paragraph (2)

to delay his decision, such candidate site shall be considered to be

approved, and the Secretary shall notify such Governor and legislature, or governing body of the affected Indian tribe, of the approval

of such candidate site by reason of the inaction of the President.

ø(2) The President may delay for not more than 6 months his decision under paragraph (1) to approve or disapprove a candidate

site, upon determining that the information provided with the recommendation of the Secretary is insufficient to permit a decision

within the 60-day period referred to in paragraph (1). The President may invoke his authority under this paragraph by submitting

written notice to the Congress, within such 60-day period, of his intent to invoke such authority. If the President invokes such authority, but fails to approve or disapprove the candidate site involved

by the end of such 6-month period, such candidate site shall be considered to be approved, and the Secretary shall notify such Governor and legislature, or governing body of the affected Indian

tribe, of the approval of such candidate site by reason of the inaction of the President.

ø(d) PRELIMINARY ACTIVITIES.—Except as otherwise provided in

this section, each activity of the President or the Secretary under

this section shall be considered to be a preliminary decisionmaking

activity. No such activity 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 require any environmental review under subparagraph (E) or (F)

of section 102(2) of such Act.

øSITE CHARACTERIZATION

øSEC. 113. (a) IN GENERAL.—The Secretary shall carry out, in accordance with the provisions of this section, appropriate site characterization activities at the Yucca Mountain site. The Secretary

shall consider fully the comments received under subsection (b)(2)

and section 112(b)(2) and shall, to the maximum extent practicable

and in consultation with the Governor of the State of Nevada, conduct site characterization activities in a manner that minimizes

any significant adverse environmental impacts identified in such

comments or in the environmental assessment submitted under

subsection (b)(1).

ø(b) COMMISSION AND STATES.—(1) Before proceeding to sink

shafts at the Yucca Mountain site, the Secretary shall submit for

such candidate site to the Commission and to the Governor or legislature of the State of Nevada, for their review and comment—

ø(A) a general plan for site characterization activities to be

conducted at such candidate site, which plan shall include—

ø(i) a description of such candidate site;
48

ø(ii) a description of such site characterization activities,

including the following: the extent of planned excavations,

plans for any onsite testing with radioactive or nonradioactive material, plans for any investigation activities that

may affect the capability of such candidate site to isolate

high-level radioactive waste and spent nuclear fuel, and

plans to control any adverse, safety-related impacts from

such site characterization activities;

ø(iii) plans for the decontamination and decommissioning of such candidate site, and for the mitigation of any

significant adverse environmental impacts caused by site

characterization activities if it is determined unsuitable for

application for a construction authorization for a repository;

ø(iv) criteria to be used to determine the suitability of

such candidate site for the location of a repository, developed pursuant to section 112(a); and

ø(v) any other information required by the Commission;

ø(B) a description of the possible form or packaging for the

high-level radioactive waste and spent nuclear fuel to be emplaced in such repository, a description, to the extent practicable, of the relationship between such waste form or packaging and the geologic medium of such site, and a description of

the activities being conducted by the Secretary with respect to

such possible waste form or packaging or such relationship;

and

ø(C) a conceptual repository design that takes into account

likely site-specific requirements.

ø(2) Before proceeding to sink shafts at the Yucca Mountain site,

the Secretary shall (A) make available to the public the site characterization plan described in paragraph (1); and (B) hold public

hearings in the vicinity of such candidate site to inform the residents of the area in which such candidate site is located of such

plan, and to receive their comments.

ø(3) During the conduct of site characterization activities at the

Yucca Mountain site, the Secretary shall report not less than once

every 6 months to the Commission and to the Governor and legislature of the State of Nevada, on the nature and extent of such activities and the information from such activities.

ø(c) RESTRICTIONS.—(1) The Secretary may conduct at the Yucca

Mountain site only such site characterization activities as the Secretary considers necessary to provide the data required for evaluation of the suitability of such site for an application to be submitted

to the Commission for a construction authorization for a repository

at such site, and for compliance with the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.).

ø(2) In conducting site characterization activities—

ø(A) the Secretary may not use any radioactive material at

a site unless the Commission concurs that such use is necessary to provide data for the preparation of the required environmental reports and an application for a construction authorization for a repository at such site; and

ø(B) if any radioactive material is used at a site—
49

ø(i) the Secretary shall use the minimum quantity necessary to determine the suitability of such site for a repository, but in no event more than the curie equivalent of 10

metric tons of spent nuclear fuel; and

ø(ii) such radioactive material shall be fully retrievable.

ø(3) If the Secretary at any time determines the Yucca Mountain

site to be unsuitable for development as a repository, the Secretary

shall—

ø(A) terminate all site characterization activities at such

site;

ø(B) notify the Congress, the Governor and legislature of Nevada of such termination and the reasons for such termination;

ø(C) remove any high-level radioactive waste, spent nuclear

fuel, or other radioactive materials at or in such site as

promptly as practicable;

ø(D) take reasonable and necessary steps to reclaim the site

and to mitigate any significant adverse environmental impacts

caused by site characterization activities at such site;

ø(E) suspend all future benefits payments under subtitle F

with respect to such site; and

ø(F) report to Congress not later than 6 months after such

determination the Secretary’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 authority.

ø(d) PRELIMINARY ACTIVITIES.—Each activity of the Secretary

under this section 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 impact statement under section 102(2)(C) of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or to require any environmental review under subparagraph (E) or (F) of

section 102(2) of such Act.

øSITE APPROVAL AND CONSTRUCTION AUTHORIZATION

øSEC. 114. (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 113, 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 113 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
50

the public, and submit to the President, a comprehensive statement

of the basis of such recommendation, including the following:

ø(A) a description of the proposed repository, including preliminary engineering specifications for the facility;

ø(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;

ø(C) a discussion of data, obtained in site characterization

activities, relating to the safety of such site;

ø(D) a final environmental impact statement prepared for

the Yucca Mountain site pursuant to subsection (f) 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;

ø(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;

ø(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;

ø(G) such other information as the Secretary considers appropriate; and

ø(H) any impact report submitted under section 116(c)(2)(B)

by the State of Nevada.

ø(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.

ø(B) The President shall submit with such recommendation a

copy of the statement of such site prepared by the Secretary under

paragraph (1).

ø(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.

ø(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 require any

environmental review under subparagraph (E) or (F) of section

102(2) of such Act.

ø(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 effect under section 115,
51

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.

ø(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 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—

ø(1) any major unresolved safety issues, and the explanation

of the Secretary with respect to design and operation plans for

resolving such issues;

ø(2) any matters of contention regarding such application;

and

ø(3) any Commission actions regarding the granting or denial of such authorization.

ø(d) COMMISSON 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). 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 subtitle C of this Act, 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.

ø(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 subtitle. 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.
52

ø(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.

ø(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.

ø(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 Act 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.

ø(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 subtitle.

ø(4) Any environmental impact statement prepared in connection

with a repository proposed to be constructed by the Secretary

under this subtitle 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.).

ø(5) Nothing in this Act 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.).
53

ø(6) In any such statement prepared with respect to the repository to be constructed under this subtitle, 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.

øREVIEW OF REPOSITORY SITE SELECTION

øSec. 115. (a) DEFINITION.—For purposes of this section, the term

‘‘resolution 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 disapproval 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 designation 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 resolution shall

be filled with the date of such submission.

ø(b) STATE OR INDIAN TRIBE PETITIONS.—The designation of a

site as suitable for application for a construction authorization for

a repository shall be effective at the end of the 60-day period beginning on the date that the President recommends such site to the

Congress under section 114, unless the Governor and legislature of

the State in which such site is located, or the governing body of an

Indian tribe on whose reservation such site is located, as the case

may be, has submitted to the Congress a notice of disapproval

under section 116 or 118. If any such notice of disapproval has

been submitted, the designation of such site shall not be effective

except as provided under subsection (c).

ø(c) CONGRESSIONAL REVIEW OF PETITIONS.—If any notice of disapproval of a repository site designation has been submitted to the

Congress under section 116 or 118 after a recommendation or approval of such site is made by the President under section 114,

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 notice of disapproval, the

Congress passes a resolution of repository siting approval in accordance with this subsection approving such site, and such resolution thereafter becomes law.

ø(d) PROCEDURES APPLICABLE TO THE SENATE.—(1) The provisions of this subsection are enacted by the Congress—

ø(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 followed

in the Senate in the case of resolutions of repository siting approval, and such provisions supersede other rules of the Senate

only to the extent that they are inconsistent with such other

rules; and

ø(B) with full recognition of the constitutional right of the

Senate to change the rules (so far as relating to the procedure

of the Senate) at any time, in the same manner and to the

same extent as in the case of any other rule of the Senate.
54

ø(2)(A) Not later than the first day of session following the day

on which any notice of disapproval of a repository site selection is

submitted to the Congress under section 116 or 118, a resolution

of repository siting approval shall be introduced (by request) in the

Senate by the chairman of the committee to which such notice of

disapproval is referred, or by a Member or Members of the Senate

designated by such chairman.

ø(B) Upon introduction, a resolution of repository siting approval

shall be referred to the appropriate committee or committees of the

Senate by the President of the Senate, and all such resolutions

with respect to the same repository site shall be referred to the

same committee or committees. Upon the expiration of 60 calendar

days of continuous session after the introduction of the first resolution of repository siting approval with respect to any site, each

committee to which such resolution was referred shall make its recommendations to the Senate.

ø(3) If any committee to which is referred a resolution of siting

approval introduced under paragraph (2)(A), or, in the absence of

such a resolution, any other resolution of siting approval introduced with respect to the site involved, has not reported such resolution at the end of 60 days of continuous session of Congress after

introduction of such resolution, such committee shall be deemed to

be discharged from further consideration of such resolution, and

such resolution shall be placed on the appropriate calendar of the

Senate.

ø(4)(A) When each committee to which a resolution of siting approval has been referred has reported, or has been deemed to be

discharged from further consideration of, a resolution described in

paragraph (3), it shall at any time thereafter be in order (even

though a previous motion to the same effect has been disagreed to)

for any Member of the Senate to move to proceed to the consideration of such resolution. Such motion shall be highly privileged and

shall not be debatable. Such motion shall not be subject to amendment, to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by

which such motion is agreed to or disagreed to shall not be in

order. If a motion to proceed to the consideration of such resolution

is agreed to, such resolution shall remain the unfinished business

of the Senate until disposed of.

ø(B) Debate on a resolution of siting approval, and on all debatable motions and appeals in connection with such resolution, shall

be limited to not more than 10 hours, which shall be divided equally between Members favoring and Members opposing such resolution. A motion further to limit debate shall be in order and shall

not be debatable. Such motion shall not be subject to amendment,

to a motion to postpone, or to a motion to recommit such resolution

shall not be in order. A motion to reconsider the vote by which such

resolution is agreed to or disagreed to shall not be in order.

ø(C) Immediately following the conclusion of the debate on a resolution of siting approval, and a single quorum call at the conclusion of such debate if requested in accordance with the rules of the

Senate, the vote on final approval of such resolution shall occur.
55

ø(D) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a

resolution of siting approval shall be decided without debate.

ø(5) If the Senate receives from the House a resolution of repository siting approval with respect to any site, then the following procedure shall apply:

ø(A) The resolution of the House with respect to such site

shall not be referred to a committee.

ø(B) With respect to the resolution of the Senate with respect to such site—

ø(i) the procedure with respect to that or other resolutions of the Senate with respect to such site shall be the

same as if no resolution from the House with respect to

such site had been received; but

ø(ii) on any vote on final passage of a resolution of the

Senate with respect to such site, a resolution from the

House with respect to such site where the text is identical

shall be automatically substituted for the resolution of the

Senate.

ø(e) PROCEDURES APPLICABLE TO THE HOUSE OF REPRESENTA- TIVES.—(1) The provisions of this section are enacted by the Congress—

ø(A) as an exercise of the rulemaking power of the House of

Representatives, and as such they are deemed a part of the

rules of the House, but applicable only with respect to the procedure to be followed in the House in the case of resolutions

of repository siting approval, and such provisions supersede

other rules of the House only to the extent that they are inconsistent with such other rules; and

ø(B) with full recognition of the constitutional right of the

House to change the rules (so far as relating to the procedure

of the House) at any time, in the same manner and to the

same extent as in the case of any other rule of the House.

ø(2) Resolutions of repository siting approval shall upon introduction, be immediately referred by the Speaker of the House to the

appropriate committee or committees of the House. Any such resolution received from the Senate shall be held at the Speaker’s

table.

ø(3) Upon the expiration of 60 days of continuous session after

the introduction of the first resolution of repository siting approval

with respect to any site, each committee to which such resolution

was referred shall be discharged from further consideration of such

resolution, and such resolution shall be referred to the appropriate

calendar, unless such resolution or an identical resolution was previously reported by each committee to which it was referred.

ø(4) It shall be in order for the Speaker to recognize a Member

favoring a resolution to call up a resolution of repository siting approval after it has been on the appropriate calendar for 5 legislative days. When any such resolution is called up, the House shall

proceed to its immediate consideration and the Speaker shall recognize the Member calling up such resolution and a Member opposed

to such resolution for 2 hours of debate in the House, to be equally

divided and controlled by such Members. When such time has expired, the previous question shall be considered as ordered on the
56

resolution to adoption without intervening motion. No amendment

to any such resolution shall be in order, nor shall it be in order to

move to reconsider the vote by which such resolution is agreed to

or disagreed to.

ø(5) If the House receives from the Senate a resolution of repository siting approval with respect to any site, then the following procedure shall apply:

ø(A) The resolution of the Senate with respect to such site

shall not be referred to a committee.

ø(B) With respect to the resolution of the House with respect

to such site—

ø(i) the procedure with respect to that or other resolutions of the House with respect to such site shall be the

same as if no resolution from the Senate with respect to

such site had been received; but

ø(ii) on any vote on final passage of a resolution of the

House with respect to such site, a resolution from the Senate with respect to such site where the text is identical

shall be automatically substituted for the resolution of the

House.

ø(f) COMPUTATION OF DAYS.—For purposes of this section—

ø(1) continuity of session of Congress is broken only by an

adjournment sine die; and

ø(2) the days on which either House is not in session because

of an adjournment of more than 3 days to a day certain are excluded in the computation of the 90-day period referred to in

subsection (c) and the 60-day period referred to in subsections

(d) and (e).

ø(g) INFORMATION PROVIDED TO CONGRESS.—In considering any

notice of disapproval submitted to the Congress under section 116

or 118, the Congress may obtain any comments of the Commission

with respect to such notice of disapproval. The provision of such

comments by the Commission shall not be construed as binding the

Commission with respect to any licensing or authorization action

concerning the repository involved.

øPARTICIPATION OF STATES

øSEC. 116. (a) NOTIFICATION OF STATES AND AFFECTED TRIBES.—

The Secretary shall identify the States with one or more potentially

acceptable sites for a repository within 90 days after the date of enactment of this Act. Within 90 days of such identification, the Secretary shall notify the Governor, the State legislature, and the tribal council of any affected Indian tribe in any State of the potentially acceptable sites within such State. For the purposes of this

title, the term ‘‘potentially acceptable site’’ means any site at

which, after geologic studies and field mapping but before detailed

geologic data gathering, the Department undertakes preliminary

drilling and geophysical testing for the definition of site location.

ø(b) STATE PARTICIPATION IN REPOSITORY SITING DECISIONS.—(1)

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 paragraph (2). 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 subtitle to the
57

Governor or legislature of such State shall be considered to refer

instead to such other person or entity.

ø(2) Upon the submission by the President to the Congress of a

recommendation of a site for a repository, the Governor or legislature of the State in which such site is located may disapprove the

site designation and submit to the Congress a notice of disapproval.

Such Governor or legislature may submit such a notice of disapproval to the Congress not later than the 60 days after the date

that the President recommends such site to the Congress under

section 114. 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 such Governor or

legislature disapproved the recommended repository site involved.

ø(3) The authority of the Governor or legislature of each State

under this subsection shall not be applicable with respect to any

site located on a reservation.

ø(c) FINANCIAL ASSISTANCE.—(1)(A) The Secretary shall make

grants to the State of Nevada and any affected unit of local government for the purpose of participating in activities required by this

section and section 117 or authorized by written agreement entered

into pursuant to section 117(c). Any salary or travel expense that

would ordinarily be incurred by such State or affected unit of local

government, may not be considered eligible for funding under this

paragraph.

ø(B) The Secretary shall make grants to the State of Nevada and

any affected unit of local government for purposes of enabling such

State or affected unit of local government—

ø(i) to review activities taken under this subtitle with respect

to the Yucca Mountain site for purposes of determining any potential economic, social, public health and safety, and environmental impacts of a repository on such State, or affected unit

of local government and its residents;

ø(ii) to develop a request for impact assistance under paragraph (2);

ø(iii) to engage in any monitoring, testing, or evaluation activities with respect to site characterization programs with regard to such site;

ø(iv) to provide information to Nevada residents regarding

any activities of such State, the Secretary, or the Commission

with respect to such site; and

ø(v) to request information from, and make comments and

recommendations to, the Secretary regarding any activities

taken under this subtitle with respect to such site.

ø(C) Any salary or travel expense that would ordinarily be incurred by the State of Nevada or any affected unit of local government may not be considered eligible for funding under this paragraph.

ø(2)(A)(i) The Secretary shall provide financial and technical assistance to the State of Nevada, and any affected unit of local government requesting such assistance.
58

ø(ii) Such assistance shall be designed to mitigate the impact on

such State or affected unit of local government of the development

of such repository and the characterization of such site.

ø(iii) Such assistance to such State or affected unit of local government of such State shall commence upon the initiation of site

characterization activities.

ø(B) The State of Nevada and any affected unit of local government may request assistance under this subsection by preparing

and submitting to the Secretary a report on the economic, social,

public health and safety, and environmental impacts that are likely

to result from site characterization activities at the Yucca Mountain site. Such report shall be submitted to the Secretary after the

Secretary has submitted to the State a general plan for site characterization activities under section 113(b).

ø(C) As soon as practicable after the Secretary has submitted

such site characterization plan, the Secretary shall seek to enter

into a binding agreement with the State of Nevada setting forth—

ø(i) the amount of assistance to be provided under this subsection to such State or affected unit of local government; and

ø(ii) the procedures to be followed in providing such assistance.

ø(3)(A) In addition to financial assistance provided under paragraphs (1) and (2), the Secretary shall grant to the State of Nevada

and any affected unit of local government an amount each fiscal

year equal to the amount such State or affected unit of local government, respectively, would receive if authorized to tax site characterization activities at such site, and the development and operation of such repository, as such State or affected unit of local government taxes the non-Federal real property and industrial activities occurring within such State or affected unit of local government.

ø(B) Such grants shall continue until such time as all such activities, development, and operation are terminated at such site.

ø(4)(A) The State of Nevada or any affected unit of local government may not receive any grant under paragraph (1) after the expiration of the 1-year period following—

ø(i) the date on which the Secretary notifies the Governor

and legislature of the State of Nevada of the termination of

site characterization activities at the site in such State;

ø(ii) the date on which the Yucca Mountain site is disapproved under section 115; or

ø(iii) the date on which the Commission disapproves an application for a construction authorization for a repository at

such site;

whichever occurs first.

ø(B) The State of Nevada or any affected unit of local government may not receive any further assistance under paragraph (2)

with respect to a site if repository construction activities or site

characterization activities at such site are terminated by the Secretary or if such activities are permanently enjoined by any court.

ø(C) At the end of the 2-year period beginning on the effective

date of any license to receive and possess for a repository in a

State, no Federal funds, shall be made available to such State or
59

affected unit of local government under paragraph (1) or (2), except

for—

ø(i) such funds as may be necessary to support activities related to any other repository located in, or proposed to be located in, such State, and for which a license to receive and possess has not been in effect for more than 1 year;

ø(ii) such funds as may be necessary to support State activities pursuant to agreements or contracts for impact assistance

entered into, under paragraph (2), by such State with the Secretary during such 2-year period; and

ø(iii) such funds as may be provided under an agreement entered into under title IV.

ø(5) Financial assistance authorized in this subsection shall be

made out of amounts held in the Waste Fund.

ø(6) No State, other than the State of Nevada, may receive financial assistance under this subsection after the date of the enactment of the Nuclear Waste Policy Amendments Act of 1987.

ø(d) ADDITIONAL NOTIFICATION AND CONSULTATION.—Whenever

the Secretary is required under any provision of this Act to notify

or consult with the governing body of an affected Indian tribe

where a site is located, the Secretary shall also notify or consult

with, as the case may be, the Governor of the State in which such

reservation is located.

øCONSULTATION WITH STATES AND AFFECTED INDIAN TRIBES

øSEC. 117. (a) PROVISION OF INFORMATION.—(1) The Secretary,

the Commission, and other agencies involved in the construction,

operation, or regulation of any aspect of a repository in a State

shall provide to the Governor and legislature of such State, and to

the governing body of any affected Indian tribe, timely and complete information regarding determinations or plans made with respect to the site characterization siting, development, design, licensing, construction, operation, regulation, or decommissioning of

such repository.

ø(2) Upon written request for such information by the Governor

or legislature of such State, or by the governing body of any affected Indian tribe, as the case may be, the Secretary shall provide

a written response to such request within 30 days of the receipt of

such request. Such response shall provide the information requested or, in the alternative, the reasons why the information cannot be so provided. If the Secretary fails to so respond within such

30 days, the Governor or legislature of such State, or the governing

body of any affected Indian tribe, as the case may be, may transmit

a formal written objection to such failure to respond to the President. If the President or Secretary fails to respond to such written

request within 30 days of the receipt by the President of such formal written objection, the Secretary shall immediately suspend all

activities in such State authorized by this subtitle, and shall not

renew such activities until the Governor or legislature of such

State, or the governing body of any affected Indian tribe, as the

case may be, has received the written response to such written request required by this subsection.

ø(b) CONSULTATION AND COOPERATION.—In performing any study

of an area within a State for the purpose of determining the suit-
60

ability of such area for a repository pursuant to section 112(c), and

in subsequently developing and loading any repository within such

State, the Secretary shall consult and cooperate with the Governor

and legislature of such State and the governing body of any affected Indian tribe in an effort to resolve the concerns of such State

and any affected Indian tribe regarding the public health and safety, environmental, and economic impacts of any such repository. In

carrying out his duties under this subtitle, the Secretary shall take

such concerns into account to the maximum extent feasible and as

specified in written agreements entered into under subsection (c).

ø(c) WRITTEN AGREEMENT.—Not later than 60 days after (1) the

approval of a site for site characterization for such a repository

under section 112(c), or (2) the written request of the State or Indian tribe in any affected State notified under section 116(a) to the

Secretary, whichever, first occurs, the Secretary shall seek to enter

into a binding written agreement, and shall begin negotiations,

with such State and, where appropriate, to enter into a separate

binding agreement with the governing body of any affected Indian

tribe, setting forth (but not limited to) the procedures under which

the requirements of subsections (a) and (b), and the provisions of

such written agreement, shall be carried out. Any such written

agreement shall not affect the authority of the Commission under

existing law. Each such written agreement shall, to the maximum

extent feasible, be completed not later than 6 months after such notification. If such written agreement is not completed within such

period, the Secretary shall report to the Congress in writing within

30 days on the status of negotiations to develop such agreement

and the reasons why such agreement has not been completed. Prior

to submission of such report to the Congress, the Secretary shall

transmit such report to the Governor of such State or the governing body of such affected Indian tribe, as the case may be, for their

review and comments. Such comments shall be included in such report prior to submission to the Congress. Such written agreement

shall specify procedures—

ø(1) by which such State or governing body of an affected Indian tribe, as the case may be, may study, determine, comment

on, and make recommendations with regard to the possible

public health and safety, environmental, social, and economic

impacts of any such repository;

ø(2) by which the Secretary shall consider and respond to

comments and recommendations made by such State or governing body of an affected Indian tribe, including the period in

which the Secretary shall so respond;

ø(3) by which the Secretary and such State or governing

body of an affected Indian tribe may review or modify the

agreement periodically;

ø(4) by which such State or governing body of an affected Indian tribe is to submit an impact report and request for impact

assistance under section 116(c) or section 118(b), as the case

may be;

ø(5) by which the Secretary shall assist such State, and the

units of general local government in the vicinity of the repository site, in resolving the offsite concerns of such State and

units of general local government, including, but not limited to,
61

questions of State liability arising from accidents, necessary

road upgrading and access to the site, ongoing emergency preparedness and emergency response, monitoring of transportation of high-level radioactive waste and spent nuclear fuel

through such State, conduct of baseline health studies of inhabitants in neighboring communities near the repository site

and reasonable periodic monitoring thereafter, and monitoring

of the repository site upon any decommissioning and decontamination;

ø(6) by which the Secretary shall consult and cooperate with

such State on a regular, ongoing basis and provide for an orderly process and timely schedule for State review and evaluation, including identification in the agreement of key events,

milestones, and decision points in the activities of the Secretary at the potential repository site;

ø(7) by which the Secretary shall notify such State prior to

the transportation of any high-level radioactive waste and

spent nuclear fuel into such State for disposal at the repository

site;

ø(8) by which such State may conduct reasonable independent monitoring and testing of activities on the repository site,

except that such monitoring and testing shall not unreasonably

interfere with or delay onsite activities;

ø(9) for sharing, in accordance with applicable law, of all

technical and licensing information, the utilization of available

expertise, the facilitating of permit procedures, joint project review, and the formulation of joint surveillance and monitoring

arrangements to carry out applicable Federal and State laws;

ø(10) for public notification of the procedures specified under

the preceding paragraphs; and

ø(11) for resolving objections of a State and affected Indian

tribes at any stage of the planning, siting, development, construction, operation, or closure of such a facility within such

State through negotiation, arbitration, or other appropriate

mechanisms.

ø(d) ON-SITE REPRESENTATIVE.—The Secretary shall offer to any

State, Indian tribe or unit of local government within whose jurisdiction a site for a repository or monitored retrievable storage facility is located under this title an opportunity to designate a representative to conduct on-site oversight activities at such site. Reasonable expenses of such representatives shall be paid out of the

Waste Fund.

øPARTICIPATION OF INDIAN TRIBES

øSEC. 118. (a) PARTICIPATION OF INDIAN TRIBES IN REPOSITORY

SITING DECISIONS.—Upon the submission by the President to the

Congress of a recommendation of a site for a repository located on

the reservation of an affected Indian tribe, the governing body of

such Indian tribe may disapprove the site designation and submit

to the Congress a notice of disapproval. The governing body of such

Indian tribe may submit such a notice of disapproval to the Congress not later than the 60 days after the date that the President

recommends such site to the Congress under section 114. A notice

of disapproval shall be considered to be submitted to the Congress
62

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 governing body of such Indian tribe

disapproved the recommended repository site involved.

ø(b) FINANCIAL ASSISTANCE.—(1) The Secretary shall make

grants to each affected tribe notified under section 116(a) for the

purpose of participating in activities required by section 117 or authorized by written agreement entered into pursuant to section

117(c). Any salary or travel expense that would ordinarily be incurred by such tribe, may not be considered eligible for funding

under this paragraph.

ø(2)(A) The Secretary shall make grants to each affected Indian

tribe where a candidate site for a repository is approved under section 112(c). Such grants may be made to each such Indian tribe

only for purposes of enabling such Indian tribe—

ø(i) to review activities taken under this subtitle with respect

to such site for purposes of determining any potential economic, social, public health and safety, and environmental impacts of such repository on the reservation and its residents;

ø(ii) to develop a request for impact assistance under paragraph (2);

ø(iii) to engage in any monitoring, testing, or evaluation activities with respect to site characterization programs with regard to such site;

ø(iv) to provide information to the residents of its reservation

regarding any activities of such Indian tribe, the Secretary, or

the Commission with respect to such site; and

ø(v) to request information from, and make comments and

recommendations to, the Secretary regarding any activities

taken under this subtitle with respect to such site.

ø(B) The amount of funds provided to any affected Indian tribe

under this paragraph in any fiscal year may not exceed 100 percent

of the costs incurred by such Indian tribe with respect to the activities described in clauses (i) through (v) of subparagraph (A). Any

salary or travel expense that would ordinarily be incurred by such

Indian tribe may not be considered eligible for funding under this

paragraph.

ø(3)(A) The Secretary shall provide financial and technical assistance to any affected Indian tribe requesting such assistance and

where there is a site with respect to which the Commission has authorized construction of a repository. Such assistance shall be designed to mitigate the impact on such Indian tribe of the development of such repository. Such assistance to such Indian tribe shall

commence within 6 months following the granting by the Commission of a construction authorization for such repository and following the initiation of construction activities at such site.

ø(B) Any affected Indian tribe desiring assistance under this

paragraph shall prepare and submit to the Secretary a report on

any economic, social, public health and safety, and environmental

impacts that are likely as a result of the development of a repository at a site on the reservation of such Indian tribe. Such report

shall be submitted to the Secretary following the completion of site

characterization activities at such site and before the recommenda-
63

tion of such site to the President by the Secretary for application

for a construction authorization for a repository. As soon as practicable following the granting of a construction authorization for

such repository, the Secretary shall seek to enter into a binding

agreement with the Indian tribe involved setting forth the amount

of assistance to be provided to such Indian tribe under this paragraph and the procedures to be followed in providing such assistance.

ø(4) The Secretary shall grant to each affected Indian tribe

where a site for a repository is approved under section 112(c) an

amount each fiscal year equal to the amount such Indian tribe

would receive were it authorized to tax site characterization activities at such site, and the development and operation of such repository, as such Indian tribe taxes the other commercial activities occurring on such reservation. Such grants shall continue until such

time as all such activities, development, and operation are terminated at such site.

ø(5) An affected Indian tribe may not receive any grant under

paragraph (1) after the expiration of the 1-year period following—

ø(i) the date on which the Secretary notifies such Indian

tribe of the termination of site characterization activities at the

candidate site involved on the reservation of such Indian tribe;

ø(ii) the date on which such site is disapproved under section

115;

ø(iii) the date on which the Commission disapproves an application for a construction authorization for a repository at

such site;

ø(iv) the date of the enactment of the Nuclear Waste Policy

Amendments Act of 1987;

whichever occurs first, unless there is another candidate site on the

reservation of such Indian tribe that is approved under section

112(c) and with respect to which the actions described in clauses

(i), (ii), and (iii) have not been taken.

ø(B) An affected Indian tribe may not receive any further assistance under paragraph (2) with respect to a site if repository construction activities at such site are terminated by the Secretary or

if such activities are permanently enjoined by any court.

ø(C) At the end of the 2-year period beginning on the effective

date of any license to receive and possess for a repository at a site

on the reservation of an affected Indian tribe, no Federal funds

shall be made available under paragraph (1) or (2) to such Indian

tribe, except for—

ø(i) such funds as may be necessary to support activities of

such Indian tribe related to any other repository where a license to receive and possess has not been in effect for more

than 1 year; and

ø(ii) such funds as may be necessary to support activities of

such Indian tribe pursuant to agreements or contracts for impact assistance entered into, under paragraph (2), by such Indian tribe with the Secretary during such 2-year period.

ø(6) Financial assistance authorized in this subsection shall be

made out of amounts held in the Nuclear Waste Fund established

in section 302.
64

øJUDICIAL REVIEW OF AGENCY ACTIONS

øSEC. 119. (a) JURISDICTION OF UNITED STATES COURTS OF APPEALS.—(1) Except for review in the Supreme Court of the United

States, the United States courts of appeals shall have original and

exclusive jurisdiction over any civil action—

ø(A) for review of any final decision or action of the Secretary, the President, or the Commission under this subtitle;

ø(B) alleging the failure of the Secretary, the President, or

the Commission to make any decision, or take any action, required under this subtitle;

ø(C) challenging the constitutionality of any decision made,

or action taken, under any provision of this subtitle;

ø(D) for review of any environmental impact statement prepared pursuant to the National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.) with respect to any action under

this subtitle, or as required under section 135(c)(1), or alleging

a failure to prepare such statement with respect to any such

action;

ø(E) for review of any environmental assessment prepared

under section 112(b)(1) or 135(c)(2); or

ø(F) for review of any research and development activity

under title II.

ø(2) The venue of any proceeding under this section shall be in

the judicial circuit in which the petitioner involved resides or has

its principal office, or in the United States Court of Appeals for the

District of Columbia.

ø(c) DEADLINE FOR COMMENCING ACTION.—A civil action for judicial review described under subsection (a)(1) may be brought not

later than the 180th day after the date of the decision or action or

failure to act involved, as the case may be, except that if a party

shows that he did not know of the decision or action complained

of (or of the failure to act), and that a reasonable person acting

under the circumstances would not have known, such party may

bring a civil action not later than the 180th day after the date such

party acquired actual or constructive knowledge of such decision,

action, or failure to act.

øEXPEDITED AUTHORIZATIONS

øSEC. 120. (a) ISSUANCE OF AUTHORIZATIONS.—(1) To the extent

that the taking of any action related to the site characterization of

a site or the construction or initial operation of a repository under

this subtitle requires a certificate, right-of-way, permit, lease, or

other authorization from a Federal agency or officer, such agency

or officer shall issue or grant any such authorization at the earliest

practicable date, to the extent permitted by the applicable provisions of law administered by such agency or officer. All actions of

a Federal agency or officer with respect to consideration of applications or requests for the issuance or grant of any such authorization shall be expedited, and any such application or request shall

take precedence over any similar applications or requests not related to such repositories.
65

ø(2) The provisions of paragraph (1) shall not apply to any certificate, right-of-way, permit, lease, or other authorization issued or

granted by, or requested from, the Commission.

ø(b) TERMS OF AUTHORIZATIONS.—Any authorization issued or

granted pursuant to subsection (a) shall include such terms and

conditions as may be required by law, and may include terms and

conditions permitted by law.

øCERTAIN STANDARDS AND CRITERIA

øSEC. 121. (a) ENVIRONMENTAL PROTECTION AGENCY STANDARDS.—Not later than 1 year after the date of the enactment of this

Act, the Administrator, pursuant to authority under other provisions of law, shall, by rule, promulgate generally applicable standards for protection of the general environment from offsite releases

from radioactive material in repositories.

ø(b) COMMISSION REQUIREMENTS AND CRITERIA.—(1)(A) Not later

than January 1, 1984, the Commission, pursuant to authority

under other provisions of law, shall, by rule, promulgate technical

requirements and criteria that it will apply, under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) and the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et seq.), in approving or disapproving—

ø(i) applications for authorization to construct repositories;

ø(ii) applications for licenses to receive and possess spent nuclear fuel and high-level radioactive waste in such repositories;

and

ø(iii) applications for authorization for closure and decommissioning of such repositories.

ø(B) Such criteria shall provide for the use of a system of multiple barriers in the design of the repository and shall include such

restrictions on the retrievability of the solidified high-level radioactive waste and spent fuel emplaced in the repository as the Commission deems appropriate.

ø(C) Such requirements and criteria shall not be inconsistent

with any comparable standards promulgated by the Administrator

under subsection (a).

ø(2) For purposes of this Act, nothing in this section shall be construed to prohibit the Commission from promulgating requirements

and criteria under paragraph (1) before the Administrator promulgates standards under subsection (a). If the Administrator promulgates standards under subsection (a) after requirements and criteria are promulgated by the Commission under paragraph (1),

such requirements and criteria shall be revised by the Commission

if necessary to comply with paragraph (1)(C).

ø(c) ENVIRONMENTAL IMPACT STATEMENT.—The promulgation of

standards or criteria in accordance with the provisions of this section shall not 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 require any environmental review under subparagraph (E) or (F) of section 102(2) of

such Act.
66

øDISPOSAL OF SPENT NUCLEAR FUEL

øSEC. 122. Notwithstanding any other provision of this subtitle,

any repository constructed on a site approved under this subtitle

shall be designed and constructed to permit the retrieval of any

spent nuclear fuel placed in such repository, during an appropriate

period of operation of the facility, for any reason pertaining to the

public health and safety, or the environment, or for the purpose of

permitting the recovery of the economically valuable contents of

such spent fuel. The Secretary shall specify the appropriate period

of retrievability with respect to any repository at the time of design

of such repository, and such aspect of such repository shall be subject to approval or disapproval by the Commission as part of the

construction authorization process under subsections (b) through

(d) of section 114.

øTITLE TO MATERIAL

øSEC. 123. Delivery, and acceptance by the Secretary, of any

high-level radioactive waste or spent nuclear fuel for a repository

constructed under this subtitle shall constitute a transfer to the

Secretary of title to such waste or spent fuel.

øCONSIDERATION OF EFFECT OF ACQUISITION OF WATER RIGHTS

øSEC. 124. The Secretary shall give full consideration to whether

the development, construction, and operation of a repository may

require any purchase or other acquisition of water rights that will

have a significant adverse effect on the present or future development of the area in which such repository is located. The Secretary

shall mitigate any such adverse effects to the maximum extent

practicable.

øTERMINATION OF CERTAIN PROVISIONS

øSEC. 125. Sections 119 and 120 shall cease to have effect at

such time as a repository developed under this subtitle is licensed

to receive and possess high-level radioactive waste and spent nuclear fuel.

øSUBTITLE B—INTERIM STORAGE PROGRAM

øFINDINGS AND PURPOSES

øSEC. 131. (a) FINDINGS.—The Congress finds that—

ø(1) the persons owning and operating civilian nuclear power

reactors have the primary responsibility for providing interim

storage of spent nuclear fuel from such reactors, by maximizing, to the extent practical, the effective use of existing storage

facilities at the site of each civilian nuclear power reactor, and

by adding new onsite storage capacity in a timely manner

where practical;

ø(2) the Federal Government has the responsibility to encourage and expedite the effective use of existing storage facilities and the addition of needed new storage capacity at the site

of each civilian nuclear power reactor; and
67

ø(3) the Federal Government has the responsibility to provide, in accordance with the provisions of this subtitle, not

more than 1,900 metric tons of capacity for interim storage of

spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity at the sites

of such reactors when needed to assure the continued, orderly

operation of such reactors.

ø(b) PURPOSES.—The purposes of this subtitle are—

ø(1) to provide for the utilization of available spent nuclear

fuel pools at the site of each civilian nuclear power reactor to

the extent practical and the addition of new spent nuclear fuel

storage capacity where practical at the site of such reactor; and

ø(2) to provide, in accordance with the provisions of this subtitle, for the establishment of a federally owned and operated

system for the interim storage of spent nuclear fuel at one or

more facilities owned by the Federal Government with not

more than 1,900 metric tons of capacity to prevent disruptions

in the orderly operation of any civilian nuclear power reactor

that cannot reasonably provide adequate spent nuclear fuel

storage capacity at the site of such reactor when needed.

øAVAILABLE CAPACITY FOR INTERIM STORAGE OF SPENT NUCLEAR

FUEL

øSEC. 132. The Secretary, the Commission, and other authorized

Federal officials shall each take such actions as such official considers necessary to encourage and expedite the effective use of available storage, and necessary additional storage, at the site of each

civilian nuclear power reactor consistent with—

ø(1) the protection of the public health and safety, and the

environment;

ø(2) economic considerations;

ø(3) continued operation of such reactor;

ø(4) any applicable provisions of law; and

ø(5) the views of the population surrounding such reactor.

øINTERIM AT REACTOR STORAGE

øSEC. 133. The Commission shall, by rule, establish procedures

for the licensing of any technology approved by the Commission

under section 219(a) for use at the site of any civilian nuclear

power reactor. The establishment of such procedures shall not preclude the licensing, under any applicable procedures or rules of the

Commission in effect prior to such establishment, of any technology

for the storage of civilian spent nuclear fuel at the site of any civilian nuclear power reactor.

øLICENSING OF FACILITY EXPANSIONS AND TRANSSHIPMENTS

øSEC. 134. (a) ORAL ARGUMENT.—In any Commission hearing

under section 189 of the Atomic Energy Act of 1954 (42 U.S.C.

2239) on an application for a license, or for an amendment to an

existing license, filed after the date of the enactment of this Act,

to expand the spent nuclear fuel storage capacity at the site of a

civilian nuclear power reactor, through the use of high-density fuel

storage racks, fuel rod compaction, the transshipment of spent nu-
68

clear fuel to another civilian nuclear power reactor within the same

utility system, the construction of additional spent nuclear fuel pool

capacity or dry storage capacity, or by other means, the Commission shall, at the request of any party, provide an opportunity for

oral argument with respect to any matter which the Commission

determines to be in controversy among the parties. The oral argument shall be preceded by such discovery procedures as the rules

of the Commission shall provide. The Commission shall require

each party, including the Commission staff, to submit in written

form, at the time of the oral argument, a summary of the facts,

data, and arguments upon which such party proposes to rely that

are known at such time to such party. Only facts and data in the

form of sworn testimony or written submission may be relied upon

by the parties during oral argument. Of the materials that may be

submitted by the parties during oral argument, the Commission

shall only consider those facts and data that are submitted in the

form of sworn testimony or written submission.

ø(b) ADJUDICATORY HEARING.—(1) At the conclusion of any oral

argument under subsection (a), the Commission shall designate

any disputed question of fact, together with any remaining questions of law, for resolution in an adjudicatory hearing only if it determines that—

ø(A) there is a genuine and substantial dispute of fact which

can only be resolved with sufficient accuracy by the introduction of evidence in an adjudicatory hearing; and

ø(B) the decision of the Commission is likely to depend in

whole or in part on the resolution of such dispute.

ø(2) In making a determination under this subsection, the Commission—

ø(A) shall designate in writing the specific facts that are in

genuine and substantial dispute, the reason why the decision

of the agency is likely to depend on the resolution of such facts,

and the reason why an adjudicatory hearing is likely to resolve

the dispute; and

ø(B) shall not consider—

ø(i) any issue relating to the design, construction, or operation of any civilian nuclear power reactor already licensed to operate at such site, or any civilian nuclear

power reactor for which a construction permit has been

granted at such site, unless the Commission determines

that any such issue substantially affects the design, construction, or operation of the facility or activity for which

such license application, authorization, or amendment is

being considered; or

ø(ii) any siting or design issue fully considered and decided by the Commission in connection with the issuance

of a construction permit or operating license for a civilian

nuclear power reactor at such site, unless (I) such issue results from any revision of siting or design criteria by the

Commission following such decision; and (II) the Commission determines that such issue substantially affects the

design, construction, or operation of the facility or activity

for which such license application, authorization, or

amendment is being considered.
69

ø(3) The provisions of paragraph (2)(B) shall apply only with respect to licenses, authorizations, or amendments to licenses or authorizations, applied for under the Atomic Energy Act of 1954 (42

U.S.C. 2011 et seq.) before December 31, 2005.

ø(4) The provisions of this section shall not apply to the first application for a license or license amendment received by the Commission to expand onsite spent fuel storage capacity by the use of

a new technology not previously approved for use at any nuclear

powerplant by the Commission.

ø(c) JUDICIAL REVIEW.—No court shall hold unlawful or set aside

a decision of the Commission in any proceeding described in subsection (a) because of a failure by the Commission to use a particular procedure pursuant to this section unless—

ø(1) an objection to the procedure used was presented to the

Commission in a timely fashion or there are extraordinary circumstances that excuse the failure to present a timely objection; and

ø(2) the court finds that such failure has precluded a fair

consideration and informed resolution of a significant issue of

the proceeding taken as a whole.

øSTORAGE OF SPENT NUCLEAR FUEL

øSEC. 135. (a) STORAGE CAPACITY.—(1) Subject to section 8, 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:

ø(A) use of available capacity at one or more facilities owned

by the Federal Government on the date of the enactment of

this Act, 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—

ø(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

ø(ii) except as provided in subsection (c) 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.

ø(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 the date of enactment of

this Act;

ø(C) construction of storage capacity at any site of a civilian

nuclear power reactor.
70

ø(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.

ø(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.

ø(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).

ø(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 136(a), and shall accept upon request any spent nuclear

fuel as covered under such contracts.

ø(6) For purposes of paragraph (1)(A), the term ‘‘facility’’ means

any building or structure.

ø(b) CONTRACTS.—(1) Subject to the capacity limitation established in subsections (a) (1) and (d) the Secretary shall offer to

enter into, and may enter into, contracts under section 136(a) 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—

ø(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

ø(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—

ø(i) expansion of storage facilities at the site of any civilian nuclear power reactor operated by such person;

ø(ii) construction of new or additional storage facilities

at the site of any civilian nuclear power reactor operated

by such person;

ø(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

ø(iv) transshipment to another civilian nuclear power reactor owned by such person.

ø(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
71

involved unless the Commission determines that maintenance of

such capability is not necessary for the continued orderly operation

of such reactor.

ø(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.

ø(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

section 102(2)(C) of the National Environmental Policy Act of 1969

(42 U.S.C. 4332(2)(C)).

ø(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) 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—

ø(i) an estimate of the amount of storage capacity to be made

available at such site;

ø(ii) an evaluation as to whether the facilities to be used at

such site are suitable for the provision of such storage capacity;

ø(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;

ø(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;

ø(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;

ø(vi) a description of any other sites and facilities that have

been considered by the Secretary for the provision of such storage capacity; and

ø(vii) an assessment of the regional and local impacts of providing such storage capacity at such site, including the impacts

on transportation.

ø(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, United States Code. 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).

ø(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 119.

ø(d) REVIEW OF SITES AND STATE PARTICIPATION.—(1) In carrying

out the provisions of this subtitle with regard to any interim storage of spent fuel from civilian nuclear power reactors which the

Secretary is authorized by section 135 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 af-
72

fected 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.

ø(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.

ø(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.

ø(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.
73

ø(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.

ø(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 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.

ø(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

subtitle to the Governor or legislature of such State shall be considered to refer instead to such other person or entity.

ø(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.

ø(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 115 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
74

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.

ø(E) For purposes of the consideration of any resolution described

in subparagraph (D), each reference in subsections (d) and (e) of

section 115 to a resolution of repository siting approval shall be

considered to refer to the resolution described in such subparagraph.

ø(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.

ø(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 Act is available for disposal of such

spent nuclear fuel.

ø(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 the date of the enactment of this Act.

ø(g) CRITERIA FOR DETERMINING ADEQUACY OF AVAILABLE STORAGE CAPACITY.—Not later than 90 days after the date of the enactment of this Act, the Commission pursuant to section 553 of the

Administrative Procedures Act, shall propose, by rule, procedures

and criteria for making the determination required by subsection

(b) 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
75

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.

ø(h) APPLICATION.—Notwithstanding any other provision of law,

nothing in this Act 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 the date of the enactment of this Act.

ø(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 217

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).

øINTERIM STORAGE FUND

øSEC. 136. (a) CONTRACTS.—(1) During the period following the

date of the enactment of this Act, but not later than January 1,

1990, the Secretary is authorized to enter into contracts with persons who generate or own spent nuclear fuel resulting from civilian

nuclear activities for the storage of such spent nuclear fuel in any

storage capacity provided under this subtitle: Provided, however,

That the Secretary shall not enter into contracts for spent nuclear

fuel in amounts in excess of the available storage capacity specified

in section 135(a). Those contracts shall provide that the Federal

Government will (1) take title at the civilian nuclear power reactor

site, to such amounts of spent nuclear fuel from the civilian nuclear

power reactor 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 processing, storage, or disposal. Each such contract shall (A) provide for payment to the Secretary of fees determined in accordance with the provisions of this

section; and (B) specify the amount of storage capacity to be provided for the person involved.

ø(2) The Secretary shall undertake a study and, not later than

180 days after the date of the enactment of this Act, submit to the

Congress a report, establishing payment charges that shall be calculated on an annual basis, commencing on or before January 1,

1984. Such payment charges and the calculation thereof shall be

published in the Federal Register, and shall become effective not

less than 30 days after publication. Each payment charge published in the Federal Register under this paragraph shall remain

effective for a period of 12 months from the effective date as the

charge for the cost of the interim storage of any spent nuclear fuel.

The report of the Secretary shall specify the method and manner

of collection (including the rates and manner of payment) and any

legislative recommendations determined by the Secretary to be appropriate.
76

ø(3) Fees for storage under this subtitle shall be established on

a nondiscriminatory basis. The fees to be paid by each person entering into a contract with the Secretary under this subsection

shall be based upon an estimate of the pro rata costs of storage and

related activities under this subtitle with respect to such person,

including the acquisition, construction, operation, and maintenance

of any facilities under this subtitle.

ø(4) The Secretary shall establish in writing criteria setting forth

the terms and conditions under which such storage services shall

be made available.

ø(5) Except as provided in section 137, nothing in this or any

other Act requires the Secretary, in carrying out the responsibilities of this section, to obtain a license or permit to possess or own

spent nuclear fuel.

ø(b) LIMITATION.—No spent nuclear fuel generated or owned by

any department of the United States referred to in section 101 or

102 of title 5, United States Code, may be stored by the Secretary

in any storage capacity provided under this subtitle unless such department transfers to the Secretary, for deposit in the Interim

Storage Fund, amounts equivalent to the fees that would be paid

to the Secretary under the contracts referred to in this section if

such spent nuclear fuel were generated by any other person.

ø(c) ESTABLISHMENT OF INTERIM STORAGE FUND.—There hereby

is established in the Treasury of the United States a separate fund,

to be known as the Interim Storage Fund. The Storage Fund shall

consist of—

ø(1) all receipts, proceeds, and recoveries realized by the Secretary under subsections (a), (b), and (e), which shall be deposited in the Storage Fund immediately upon their realization;

ø(2) any appropriations made by the Congress to the Storage

Fund; and

ø(3) any unexpended balances available on the date of the

enactment of this Act for functions or activities necessary or incident to the interim storage of civilian spent nuclear fuel,

which shall automatically be transferred to the Storage Fund

on such date.

ø(d) USE OF STORAGE FUND.—The Secretary may make expenditures from the Storage Fund, subject to subsection (e), for any purpose necessary or appropriate to the conduct of the functions and

activities of the Secretary, or the provision or anticipated provision

of services, under this subtitle, including—

ø(1) the identification, development, licensing, construction,

operation, decommissioning, and post-decommissioning maintenance and monitoring of any interim storage facility provided

under this subtitle;

ø(2) the administrative cost of the interim storage program;

ø(3) the costs associated with acquisition, design, modification, replacement, operation, and construction of facilities at an

interim storage site, consistent with the restrictions in section

135;

ø(4) the cost of transportation of spent nuclear fuel; and

ø(5) impact assistance as described in subsection (e).

ø(e) IMPACT ASSISTANCE.—(1) Beginning the first fiscal year

which commences after the date of the enactment of this Act, the
77

Secretary shall make annual impact assistance payments to a

State or appropriate unit of local government, or both, in order to

mitigate social or economic impacts occasioned by the establishment and subsequent operation of any interim storage capacity

within the jurisdictional boundaries of such government or governments and authorized under this subtitle: Provided, however, That

such impact assistance payments shall not exceed (A) ten per centum of the costs incurred in paragraphs (1) and (2), or (B) $15 per

kilogram of spent fuel, whichever is less;

ø(2) Payments made available to States and units of local government pursuant to this section shall be—

ø(A) allocated in a fair and equitable manner with a priority

to those States or units of local government suffering the most

severe impacts; and

ø(B) utilized by States or units of local governments only for

(i) planning, (ii) construction and maintenance of public services, (iii) provision of public services related to the providing of

such interim storage authorized under this title, and (iv) compensation for loss of taxable property equivalent to that if the

storage had been provided under private ownership.

ø(3) Such payments shall be subject to such terms and conditions

as the Secretary determines necessary to ensure that the purposes

of this subsection shall be achieved. The Secretary shall issue such

regulations as may be necessary to carry out the provisions of this

subsection.

ø(4) Payments under this subsection shall be made available

solely from the fees determined under subsection (a).

ø(5) The Secretary is authorized to consult with States and appropriate units of local government in advance of commencement

of establishment of storage capacity authorized under this subtitle

in an effort to determine the level of the payment such government

would be eligible to receive pursuant to this subsection.

ø(6) As used in this subsection, the term ‘‘unit of local government’’ means a county, parish, township, municipality, and shall

include a borough existing in the State of Alaska on the date of the

enactment of this subsection, and any other unit of government

below the State level which is a unit of general government as determined by the Secretary.

ø(f) ADMINISTRATION OF STORAGE FUND.—(1) The Secretary of

the Treasury shall hold the Storage Fund and, after consultation

with the Secretary, annually report to the Congress on the financial condition and operations of the Storage Fund during the preceding fiscal year.

ø(2) The Secretary shall submit the budget of the Storage Fund

to the Office of Management and Budget triennially along with the

budget of the Department of Energy submitted at such time in accordance with chapter 11 of title 31, United States Code. The budget of the Storage Fund shall consist of estimates made by the Secretary of expenditures from the Storage Fund and other relevant

financial matters for the succeeding 3 fiscal years, and shall be included in the Budget of the United States Government. The Secretary may make expenditures from the Storage Fund, subject to

appropriations which shall remain available until expended. Appropriations shall be subject to triennial authorization.
78

ø(3) If the Secretary determines that the Storage Fund contains

at any time amounts in excess of current needs, the Secretary may

request the Secretary of the Treasury to invest such amounts, or

any portion of such amounts as the Secretary determines to be appropriate, in obligations of the United States—

ø(A) having maturities determined by the Secretary of the

Treasury to be appropriate to the needs of the Storage Fund;

and

ø(B) bearing interest at rates determined to be appropriate

by the Secretary of the Treasury, taking into consideration the

current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the maturities of such investments, except

that the interest rate on such investments shall not exceed the

average interest rate applicable to existing borrowings.

ø(4) Receipts, proceeds, and recoveries realized by the Secretary

under this section, and expenditures of amounts from the Storage

Fund, shall be exempt from annual apportionment under the provisions of subchapter II of chapter 15 of title 31, United States Code.

ø(5) If at any time the moneys available in the Storage Fund are

insufficient to enable the Secretary to discharge his responsibilities

under this subtitle, the Secretary shall issue to the Secretary of the

Treasury obligations in such forms and denominations, bearing

such maturities, and subject to such terms and conditions as may

be agreed to by the Secretary and the Secretary of the Treasury.

The total of such obligations shall not exceed amounts provided in

appropriation Acts. Redemption of such obligations shall be made

by the Secretary from moneys available in the Storage Fund. Such

obligations shall bear interest at a rate determined by the Secretary of the Treasury, which shall be not less than a rate determined by taking into consideration the average market yield on

outstanding marketable obligations of the United States of comparable maturities during the month preceding the issuance of the

obligations under this paragraph. The Secretary of the Treasury

shall purchase any issued obligations, and for such purpose the

Secretary of the Treasury is authorized to use as a public debt

transaction the proceeds from the sale of any securities issued

under chapter 31 of title 31, United States Code, and the purposes

for which securities may be issued under such Act are extended to

include any purchase of such obligations. The Secretary of the

Treasury may at any time sell any of the obligations acquired by

him under this paragraph. All redemptions, purchases, and sales

by the Secretary of the Treasury of obligations under this paragraph shall be treated as public debt transactions of the United

States.

ø(6) Any appropriations made available to the Storage Fund for

any purpose described in subsection (d) shall be repaid into the

general fund of the Treasury, together with interest from the date

of availability of the appropriations until the date of repayment.

Such interest shall be paid on the cumulative amount of appropriations available to the Storage Fund, less the average undisbursed

cash balance in the Storage Fund account during the fiscal year involved. The rate of such interest shall be determined by the Secretary of the Treasury taking into consideration the average mar-
79

ket yield during the month preceding each fiscal year on outstanding marketable obligations of the United States of comparable maturity. Interest payments may be deferred with the approval of the

Secretary of the Treasury, but any interest payments so deferred

shall themselves bear interest.

øSEC. 137. (a) TRANSPORTATION.—(1) Transportation of spent nuclear fuel under section 136(a) shall be subject to licensing and regulation by the Commission and by the Secretary of Transportation

as provided for transportation of commercial spent nuclear fuel

under existing law.

ø(2) The Secretary, in providing for the transportation of spent

nuclear fuel under this Act, shall utilize by contract private industry to the fullest extent possible in each aspect of such transportation. The Secretary shall use direct Federal services for such

transportation only upon a determination of the Secretary of Transportation, in consultation with the Secretary, that private industry

is unable or unwilling to provide such transportation services at

reasonable cost.

øSUBTITLE C—MONITORED RETRIEVABLE STORAGE

øMONITORED RETRIEVABLE STORAGE

øSEC. 141. (a) FINDINGS.—The Congress finds that—

ø(1) long-term storage of high-level radioactive waste or

spent nuclear fuel in monitored retrievable storage facilities is

an option for providing safe and reliable management of such

waste or spent fuel;

ø(2) the executive branch and the Congress should proceed

as expeditiously as possible to consider fully a proposal for construction of one or more monitored retrievable storage facilities

to provide such long-term storage;

ø(3) the Federal Government has the responsibility to ensure

that site-specific designs for such facilities are available as provided in this section;

ø(4) the generators and owners of the high-level radioactive

waste and spent nuclear fuel to be stored in such facilities

have the responsibility to pay the costs of the long-term storage of such waste and spent fuel; and

ø(5) disposal of high-level radioactive waste and spent nuclear fuel in a repository developed under this Act should proceed regardless of any construction of a monitored retrievable

storage facility pursuant to this section.

ø(b) SUBMISSION OF PROPOSAL BY SECRETARY.—(1) On or before

June 1, 1985, the Secretary shall complete a detailed study of the

need for and feasibility of, and shall submit to the Congress a proposal for, the construction of one or more monitored retrievable

storage facilities for high-level radioactive waste and spent nuclear

fuel. Each such facility shall be designed—

ø(A) to accommodate spent nuclear fuel and high-level radioactive waste resulting from civilian nuclear activities;

ø(B) to permit continuous monitoring, management, and

maintenance of such spent fuel and waste for the foreseeable

future;
80

ø(C) to provide for the ready retrieval of such spent fuel and

waste for further processing or disposal; and

ø(D) to safely store such spent fuel and waste as long as may

be necessary by maintaining such facility through appropriate

means, including any required replacement of such facility.

ø(2) Such proposal shall include—

ø(A) the establishment of a Federal program for the siting,

development, construction, and operation of facilities capable of

safely storing high-level radioactive waste and spent nuclear

fuel, which facilities are to be licensed by the Commission;

ø(B) a plan for the funding of the construction and operation

of such facilities, which plan shall provide that the costs of

such activities shall be borne by the generators and owners of

the high-level radioactive waste and spent nuclear fuel to be

stored in such facilities;

ø(C) site-specific designs, specifications, and cost estimates

sufficient to (i) solicit bids for the construction of the first such

facility; (ii) support congressional authorization of the construction of such facility; and (iii) enable completion and operation

of such facility as soon as practicable following congressional

authorization of such facility; and

ø(D) a plan for integrating facilities constructed pursuant to

this section with other storage and disposal facilities authorized in this Act.

ø(3) In formulating such proposal, the Secretary shall consult

with the Commission and the Administrator, and shall submit

their comments on such proposal to the Congress at the time such

proposal is submitted.

ø(4) The proposal shall include, for the first such facility, at least

3 alternative sites and at least 5 alternative combinations of such

proposed sites and facility designs consistent with the criteria of

paragraph (b)(1). The Secretary shall recommend the combination

among the alternatives that the Secretary deems preferable. The

environmental assessment under subsection (c) shall include a full

analysis of the relative advantages and disadvantages of all 5 such

alternative combinations of proposed sites and proposed facility designs.

ø(c) ENVIRONMENTAL IMPACT STATEMENTS.—(1) Preparation and

submission to the Congress of the proposal required in this section

shall not 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)). The Secretary shall prepare, in

accordance with regulations issued by the Secretary implementing

such Act, an environmental assessment with respect to such proposal. Such environmental assessment shall be based upon available information regarding alternative technologies for the storage

of spent nuclear fuel and high-level radioactive waste. The Secretary shall submit such environmental assessment to the Congress at the time such proposal is submitted.

ø(2) If the Congress by law, after review of the proposal submitted by the Secretary under subsection (b), specifically authorizes

construction of a monitored retrievable storage facility, the requirements of the National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.) shall apply with respect to construction of such facil-
81

ity, except that any environmental impact statement prepared with

respect to such facility shall not be required to consider the need

for such facility or any alternative to the design criteria for such

facility set forth in subsection (b)(1).

ø(d) LICENSING.—Any facility authorized pursuant to this section

shall be subject to licensing under section 202(3) of the Energy Reorganization Act of 1974 (42 U.S.C. 5842(3)). In reviewing the application filed by the Secretary for licensing of the first such facility, the Commission may not consider the need for such facility or

any alternative to the design criteria for such facility set forth in

subsection (b)(1).

ø(e) CLARIFICATION.—Nothing in this section limits the consideration of alternative facility designs consistent with the criteria of

paragraph (b)(1) in any environmental impact statement, or in any

licensing procedure of the Commission, with respect to any monitored, retrievable facility authorized pursuant to this section.

ø(f) IMPACT ASSISTANCE.—(1) Upon receipt by the Secretary of

congressional authorization to construct a facility described in subsection (b), the Secretary shall commence making annual impact

aid payments to appropriate units of general local government in

order to mitigate any social or economic impacts resulting from the

construction and subsequent operation of any such facility within

the jurisdictional boundaries of any such unit.

ø(2) Payments made available to units of general local government under this subsection shall be—

ø(A) allocated in a fair and equitable manner, with priority

given to units of general local government determined by the

Secretary to be most severely affected; and

ø(B) utilized by units of general local government only for

planning, construction, maintenance, and provision of public

services related to the siting of such facility.

ø(3) Such payments shall be subject to such terms and conditions

as the Secretary determines are necessary to ensure achievement

of the purposes of this subsection. The Secretary shall issue such

regulations as may be necessary to carry out the provisions of this

subsection.

ø(4) Such payments shall be made available entirely from funds

held in the Nuclear Waste Fund established in section 302(c) and

shall be available only to the extent provided in advance in appropriation Acts.

ø(5) The Secretary may consult with appropriate units of general

local government in advance of commencement of construction of

any such facility in an effort to determine the level of payments

each such unit is eligible to receive under this subsection.

ø(g) LIMITATION.—No monitored retrievable storage facility developed pursuant to this section may be constructed in any State in

which there is located any site approved for site characterization

under section 112. 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. Such restriction shall continue to apply

to any site selected for construction as a repository.

ø(h) PARTICIPATION OF STATES AND INDIAN TRIBES.—Any facility

authorized pursuant to this section shall be subject to the provi-
82

sions of sections 115, 116(a), 116(b), 116(d), 117, and 118. For purposes of carrying out the provisions of this subsection, any reference in sections 115 through 118 to a repository shall be considered to refer to a monitored retrievable storage facility.

øAUTHORIZATION OF MONITORED RETRIEVABLE STORAGE

øSEC. 142. (a) NULLIFICATION OF OAK RIDGE SITING PROPOSAL.—

The proposal of the Secretary (EC–1022, 100th Congress) to locate

a monitored retrievable storage facility at a site on the Clinch

River in the Roane County portion of Oak Ridge, Tennessee, with

alternative sites on the Oak Ridge Reservation of the Department

of Energy and on the former site of a proposed nuclear powerplant

in Hartsville, Tennessee, is annulled and revoked. In carrying out

the provisions of sections 144 and 145, the Secretary shall make no

presumption or preference to such sites by reason of their previous

selection.

ø(b) AUTHORIZATION.—The Secretary is authorized to site, construct, and operate one monitored retrievable storage facility subject to the conditions described in sections 143 through 149.

øMONITORED RETRIEVABLE STORAGE COMMISSION

øSEC. 143. (a) ESTABLISHMENT.—(1)(A) There is established a

Monitored Retrievable Storage Review Commission (hereinafter in

this section referred to as the ‘‘MRS Commission’’), that shall consist of 3 members who shall be appointed by and serve at the

pleasure of the President pro tempore of the Senate and the Speaker of the House of Representatives.

ø(B) Members of the MRS Commission shall be appointed not

later than 30 days after the date of the enactment of the Nuclear

Waste Policy Amendments Act of 1987 from among persons who as

a result of training, experience and attainments are exceptionally

well qualified to evaluate the need for a monitored retrievable storage facility as a part of the Nation’s nuclear waste management

system.

ø(C) The MRS Commission shall prepare a report on the need for

a monitored retrievable storage facility as a part of a national nuclear waste management system that achieves the purposes of this

Act. In preparing the report under this subparagraph, the MRS

Commission shall—

ø(i) review the status and adequacy of the Secretary’s evaluation of the systems advantages and disadvantages of bringing such a facility into the national nuclear waste disposal system;

ø(ii) obtain comment and available data on monitored retrievable storage from affected parties, including States containing potentially acceptable sites;

ø(iii) evaluate the utility of a monitored retrievable storage

facility from a technical perspective; and

ø(iv) make a recommendation to Congress as to whether

such a facility should be included in the national nuclear waste

management system in order to achieve the purposes of this

Act, including meeting needs for packaging and handling of

spent nuclear fuel, improving the flexibility of the repository
83

development schedule, and providing temporary storage of

spent nuclear fuel accepted for disposal.

ø(2) In preparing the report and making its recommendation

under paragraph (1) the MRS Commission shall compare such a facility to the alternative of at-reactor storage of spent nuclear fuel

prior to disposal of such fuel in a repository under this Act. Such

comparison shall take into consideration the impact on—

ø(A) repository design and construction;

ø(B) waste package design, fabrication and standardization;

ø(C) waste preparation;

ø(D) waste transportation systems;

ø(E) the reliability of the national system for the disposal of

radioactive waste;

ø(F) the ability of the Secretary to fulfill contractual commitments of the Department under this Act to accept spent nuclear fuel for disposal; and

ø(G) economic factors, including the impact on the costs likely to be imposed on ratepayers of the Nation’s electric utilities

for temporary at-reactor storage of spent nuclear fuel prior to

final disposal in a repository, as the costs likely to be imposed

on ratepayers of the Nation’s electric utilities in building and

operating such a facility.

ø(3) The report under this subsection, together with the recommendation of the MRS Commission, shall be transmitted to Congress on November 1, 1989.

ø(4)(A)(i) Each member of the MRS Commission shall be paid at

the rate provided for level III of the Executive Schedule for each

day (including travel time) such member is engaged in the work of

the MRS Commission, and shall receive travel expenses, including

per diem in lieu of subsistence in the same manner as is permitted

under sections 5702 and 5703 of title 5, United States Code.

ø(ii) The MRS Commission may appoint and fix compensation,

not to exceed the rate of basic pay payable for GS–18 of the General Schedule, for such staff as may be necessary to carry out its

functions.

ø(B)(i) The MRS Commission may hold hearings, sit and act at

such times and places, take such testimony and receive such evidence as the MRS Commission considers appropriate. Any member

of the MRS Commission may administer oaths or affirmations to

witnesses appearing before the MRS Commission.

ø(ii) The MRS Commission may request any Executive agency,

including the Department, to furnish such assistance or information, including records, data, files, or documents, as the Commission considers necessary to carry out its functions. Unless prohibited by law, such agency shall promptly furnish such assistance or

information.

ø(iii) To the extent permitted by law, the Administrator of the

General Services Administration shall, upon request of the MRS

Commission, provide the MRS Commission with necessary administrative services, facilities, and support on a reimbursable basis.

ø(iv) The MRS Commission may procure temporary and intermittent services from experts and consultants to the same extent as

is authorized by section 3109(b) of title 5, United States Code, at
84

rates and under such rules as the MRS Commission considers reasonable.

ø(C) The MRS Commission shall cease to exist 60 days after the

submission to Congress of the report required under this subsection.

øSURVEY

øSEC. 144. After the MRS Commission submits its report to the

Congress under section 143, the Secretary may conduct a survey

and evaluation of potentially suitable sites for a monitored retrievable storage facility. In conducting such survey and evaluation, the

Secretary shall consider the extent to which siting a monitored retrievable storage facility at each site surveyed would—

ø(1) enhance the reliability and flexibility of the system for

the disposal of spent nuclear fuel and high-level radioactive

waste established under this Act;

ø(2) minimize the impacts of transportation and handling of

such fuel and waste;

ø(3) provide for public confidence in the ability of such system to safely dispose of the fuel and waste;

ø(4) impose minimal adverse effects on the local community

and the local environment;

ø(5) provide a high probability that the facility will meet applicable environmental, health, and safety requirements in a

timely fashion;

ø(6) provide such other benefits to the system for the disposal of spent nuclear fuel and high-level radioactive waste as

the Secretary deems appropriate; and

ø(7) unduly burden a State in which significant volumes of

high-level radioactive waste resulting from atomic energy defense activities are stored.

øSITE SELECTION

øSEC. 145. (a) IN GENERAL.—The Secretary may select the site

evaluated under section 144 that the Secretary determines on the

basis of available information to be the most suitable for a monitored retrievable storage facility that is an integral part of the system for the disposal of spent nuclear fuel and high-level radioactive

waste established under this Act.

ø(b) LIMITATION.—The Secretary may not select a site under subsection (a) until the Secretary recommends to the President the approval of a site for development as a repository under section

114(a).

ø(c) SITE SPECIFIC ACTIVITIES.—The Secretary may conduct such

site specific activities at each site surveyed under section 144 as he

determines may be necessary to support an application to the Commission for a license to construct a monitored retrievable storage

facility at such site.

ø(d) ENVIRONMENTAL ASSESSMENT.—Site specific activities and

selection of a site under this section shall not 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)). The Secretary shall prepare an environmental assessment with respect to such selection in accordance with regulations
85

issued by the Secretary implementing such Act. Such environmental assessment shall be based upon available information regarding alternative technologies for the storage of spent nuclear

fuel and high-level radioactive waste. The Secretary shall submit

such environmental assessment to the Congress at the time such

site is selected.

ø(e) NOTIFICATION BEFORE SELECTION.—(1) At least 6 months before selecting a site under subsection (a), the Secretary shall notify

the Governor and 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, of such potential selection and

the basis for such selection.

ø(2) Before selecting any site under subsection (a), the Secretary

shall hold at least one public hearing in the vicinity of such site

to solicit any recommendations of interested parties with respect to

issues raised by the selection of such site.

ø(f) NOTIFICATION OF SELECTION.—The Secretary shall promptly

notify Congress and the appropriate State or Indian tribe of the selection under subsection (a).

ø(g) LIMITATION.—No monitored retrievable storage facility authorized pursuant to section 142(b) may be constructed in the State

of Nevada.

øNOTICE OF DISAPPROVAL

øSEC. 146. (a) IN GENERAL.—The selection of a site under section

145 shall be effective at the end of the period of 60 calendar days

beginning on the date of notification under such subsection, unless

the governing body of the Indian tribe on whose reservation such

site is located, or, if the site is not on a reservation, the Governor

and the legislature of the State in which the site is located, has

submitted to Congress a notice of disapproval with respect to such

site. If any such notice of disapproval has been submitted under

this subsection, the selection of the site under section 145 shall not

be effective except as provided under section 115(c).

ø(b) REFERENCES.—For purposes of carrying out the provisions of

this subsection, references in section 115(c) to a repository shall be

considered to refer to a monitored retrievable storage facility and

references to a notice of disapproval of a repository site designation

under section 116(b) or 118(a) shall be considered to refer to a notice of disapproval under this section.

øBENEFITS AGREEMENT

øSEC. 147. Once selection of a site for a monitored retrievable

storage facility is made by the Secretary under section 145, the Indian tribes on whose reservation the site is located, or, in the case

that the site is not located on a reservation, the State in which the

site is located, shall be eligible to enter into a benefits agreement

with the Secretary under section 170.

øCONSTRUCTION AUTHORIZATION

øSEC. 148. (a) ENVIRONMENTAL IMPACT STATEMENT.—(1) Once

the selection of a site is effective under section 146, the requirements of the National Environmental Policy Act of 1969 (42 U.S.C
86

4321 et seq.) shall apply with respect to construction of a monitored retrievable storage facility, except that any environmental

impact statement prepared with respect to such facility shall not

be required to consider the need for such facility or any alternative

to the design criteria for such facility set forth in section 141(b)(1).

ø(2) Nothing in this section shall be construed to limit the consideration of alternative facility designs consistent with the criteria

described in section 141(b)(1) in any environmental impact statement, or in any licensing procedure of the Commission, with respect to any monitored retrievable storage facility authorized under

section 142(b).

ø(b) APPLICATION FOR CONSTRUCTION LICENSE.—Once the selection of a site for a monitored retrievable storage facility is effective

under section 146, the Secretary may submit an application to the

Commission for a license to construct such a facility as part of an

integrated nuclear waste management system and in accordance

with the provisions of this section and applicable agreements under

this Act affecting such facility.

ø(c) LICENSING.—Any monitored retrievable storage facility authorized pursuant to section 142(b) shall be subject to licensing

under section 202(3) of the Energy Reorganization Act of 1974 (42

U.S.C. 5842(3)). In reviewing the application filed by the Secretary

for licensing of such facility, the Commission may not consider the

need for such facility or any alternative to the design criteria for

such facility set forth in section 141(b)(1).

ø(d) LICENSING CONDITIONS.—Any license issued by the Commission for a monitored retrievable storage facility under this section

shall provide that—

ø(1) construction of such facility may not begin until the

Commission has issued a license for the construction of a repository under section 115(d);

ø(2) construction of such facility or acceptance of spent nuclear fuel or high-level radioactive waste shall be prohibited

during such time as the repository license is revoked by the

Commission or construction of the repository ceases;

ø(3) the quantity of spent nuclear fuel or high-level radioactive waste at the site of such facility at any one time may

not exceed 10,000 metric tons of heavy metal until a repository

under this Act first accepts spent nuclear fuel or solidified

high-level radioactive waste; and

ø(4) the quantity of spent nuclear fuel or high-level radioactive waste at the site of such facility at any one time may

not exceed 15,000 metric tons of heavy metal.

øFINANCIAL ASSISTANCE

øSEC. 149. The provisions of section 116(c) or 118(b) with respect

to grants, technical assistance, and other financial assistance shall

apply to the State, to affected Indian tribes and to affected units

of local government in the case of a monitored retrievable storage

facility in the same manner as for a repository.
87

øSUBTITLE D—LOW-LEVEL RADIOACTIVE WASTE

øFINANCIAL ARRANGEMENTS FOR LOW-LEVEL RADIOACTIVE WASTE

SITE CLOSURE

øSEC. 151. (a) FINANCIAL ARRANGEMENTS.—(1) The Commission

shall establish by rule, regulation, or order, after public notice, and

in accordance with section 181 of the Atomic Energy Act of 1954

(42 U.S.C. 2231), such standards and instructions as the Commission may deem necessary or desirable to ensure in the case of each

license for the disposal of low-level radioactive waste that an adequate bond, surety, or other financial arrangement (as determined

by the Commission) will be provided by a licensee to permit completion of all requirements established by the Commission for the

decontamination, decommissioning, site closure, and reclamation of

sites, structures, and equipment used in conjunction with such lowlevel radioactive waste. Such financial arrangements shall be provided and approved by the Commission, or, in the case of sites

within the boundaries of any agreement State under section 274 of

the Atomic Energy Act of 1954 (42 U.S.C. 2021), by the appropriate

State or State entity, prior to issuance of licenses for low-level radioactive waste disposal or, in the case of licenses in effect on the

date of the enactment of this Act, prior to termination of such licenses.

ø(2) If the Commission determines that any long-term maintenance or monitoring, or both, will be necessary at a site described

in paragraph (1), the Commission shall ensure before termination

of the license involved that the licensee has made available such

bonding, surety, or other financial arrangements as may be necessary to ensure that any necessary long-term maintenance or

monitoring needed for such site will be carried out by the person

having title and custody for such site following license termination.

ø(b) TITLE AND CUSTODY.—(1) The Secretary shall have authority

to assume title and custody of low-level radioactive waste and the

land on which such waste is disposed of, upon request of the owner

of such waste and land and following termination of the license issued by the Commission for such disposal, if the Commission determines that—

ø(A) the requirements of the Commission for site closure, decommissioning, and decontamination have been met by the licensee involved and that such licensee is in compliance with

the provisions of subsection (a);

ø(B) such title and custody will be transferred to the Secretary without cost to the Federal Government; and

ø(C) Federal ownership and management of such site is necessary or desirable in order to protect the public health and

safety, and the environment.

ø(2) If the Secretary assumes title and custody of any such waste

and land under this subsection, the Secretary shall maintain such

waste and land in a manner that will protect the public health and

safety, and the environment.

ø(c) SPECIAL SITES.—If the low-level radioactive waste involved is

the result of a licensed activity to recover zirconium, hafnium, and

rare earths from source material, the Secretary, upon request of

the owner of the site involved, shall assume title and custody of
88

such waste and the land on which it is disposed when such site has

been decontaminated and stabilized in accordance with the requirements established by the Commission and when such owner has

made adequate financial arrangements approved by the Commission for the long-term maintenance and monitoring of such site.

øSUBTITLE E—REDIRECTION OF THE NUCLEAR WASTE PROGRAM

øSELECTION OF YUCCA MOUNTAIN SITE

øSEC. 160. (a) IN GENERAL.—(1) The Secretary shall provide for

an orderly phase-out of site specific activities at all candidate sites

other than the Yucca Mountain site.

ø(2) The Secretary shall terminate all site specific activities

(other than reclamation activities) at all candidate sites, other than

the Yucca Mountain site, within 90 days after the date of enactment of the Nuclear Waste Policy Amendments Act of 1987.

ø(b) Effective on the date of enactment of the Nuclear Waste Policy Amendments Act of 1987, the State of Nevada shall be eligible

to enter into a benefits agreement with the Secretary under section

170.

øSITING A SECOND REPOSITORY

øSEC. 161. (a) CONGRESSIONAL ACTION REQUIRED.—The Secretary may not conduct site-specific activities with respect to a second repository unless Congress has specifically authorized and appropriated funds for such activities.

ø(b) REPORT.—The Secretary shall report to the President and to

Congress on or after January 1, 2007, but not later than January

1, 2010, on the need for a second repository.

ø(c) TERMINATION OF GRANITE RESEARCH.—Not later than 6

months after the date of the enactment of the Nuclear Waste Policy

Amendments Act of 1987, 1 the Secretary shall phase out in an orderly manner funding for all research programs in existence on

such date of enactment designated to evaluate the suitability of

crystalline rock as a potential repository host medium.

ø(d) ADDITIONAL SITING CRITERIA.—In the event that the Secretary at any time after such date of enactment considers any sites

in crystalline rock for characterization or selection as a repository,

the Secretary shall consider (as a supplement to the siting guidelines under section 112) such potentially disqualifying factors as—

ø(1) seasonally increases in population;

ø(2) proximity to public drinking water supplies, including

those of metropolitan areas; and

ø(3) the impact that characterization or siting decisions

would have on lands owned or placed in trust by the United

States for Indian tribes.

øSUBTITLE F—BENEFITS

øBENEFITS AGREEMENTS

øSEC. 170. (a) IN GENERAL.—(1) The Secretary may enter into a

benefits agreement with the State of Nevada concerning a repository or with a State or an Indian tribe concerning a monitored retrievable storage facility for the acceptance of high-level radioactive
89

waste or spent nuclear fuel in that State or on the reservation of

that tribe, as appropriate.

ø(2) The State or Indian tribe may enter into such an agreement

only if the State Attorney General or the appropriate governing authority of the Indian tribe or the Secretary of the Interior, in the

absence of an appropriate governing authority, as appropriate, certifies to the satisfaction of the Secretary that the laws of the State

or Indian tribe provide adequate authority for that entity to enter

into the benefits agreement.

ø(3) Any benefits agreement with a State under this section shall

be negotiated in consultation with affected units of local government in such State.

ø(4) Benefits and payments under this subtitle may be made

available only in accordance with a benefits agreement under this

section.

ø(b) AMENDMENT.—A benefits agreement entered into under subsection (a) may be amended only by the mutual consent of the parties to the agreement and terminated only in accordance with section 173.

ø(c) AGREEMENT WITH NEVADA.—The Secretary shall offer to

enter into a benefits agreement with the Governor of Nevada. Any

benefits agreement with a State under this subsection shall be negotiated in consultation with any affected units of local government

in such State.

ø(d) MONITORED RETRIEVABLE STORAGE.—The Secretary shall

offer to enter into a benefits agreement relating to a monitored retrievable storage facility with the governing body of the Indian

tribe on whose reservation the site for such facility is located, or,

if the site is not located on a reservation, with the Governor of the

State in which the site is located and in consultation with affected

units of local government in such State.

ø(e) LIMITATION.—Only one benefits agreement for a repository

and only one benefits agreement for a monitored retrievable storage facility may be in effect at any one time.

ø(f) JUDICIAL REVIEW.—Decisions of the Secretary under this section are not subject to judicial review.

øCONTENT OF AGREEMENTS

øSEC. 171. (a) IN GENERAL.—(1) In addition to the benefits to

which a State, an affected unit of local government or Indian tribe

is entitled under title I, the Secretary shall make payments to a

State or Indian tribe that is a party to a benefits agreement under

section 170 in accordance with the following schedule:

øBENEFITS SCHEDULE

[Amounts in millions]

Event MRS Repository

(A) Annual payments prior to first spent fuel receipt ............. $5 $10

(B) Upon first spent fuel receipt ................................................ 10 20
90

[Amounts in millions]

Event MRS Repository

(C) Annual payments after first spent fuel receipt until closure of the facility ................................................................... 10 20

ø(2) For purposes of this section, the term—

ø(A) ‘‘MRS’’ means a monitored retrievable storage facility,

ø(B) ‘‘spent fuel’’ means high-level radioactive waste or spent

nuclear fuel, and

ø(C) ‘‘first spent fuel receipt’’ does not include receipt of

spent fuel or high-level radioactive waste for purposes of testing or operational demonstration.

ø(3) Annual payments prior to first spent fuel receipt under paragraph (1)(A) shall be made on the date of execution of the benefits

agreement and thereafter on the anniversary date of such execution. Annual payments after the first spent fuel receipt until closure of the facility under paragraph (1)(C) shall be made on the anniversary date of such first spent fuel receipt.

ø(4) If the first spent fuel payment under paragraph (1)(B) is

made within six months after the last annual payment prior to the

receipt of spent fuel under paragraph (1)(A), such first spent fuel

payment under paragraph (1)(B) shall be reduced by an amount

equal to one-twelfth of such annual payment under paragraph

(1)(A) for each full month less than six that has not elapsed since

the last annual payment under paragraph (1)(A).

ø(5) Notwithstanding paragraph (1), (2), or (3), no payment under

this section may be made before January 1, 1989, and any payment

due under this title before January 1, 1989, shall be made on or

after such date.

ø(6) Except as provided in paragraph (7), the Secretary may not

restrict the purposes for which the payments under this section

may be used.

ø(7)(A) Any State receiving a payment under this section shall

transfer an amount equal to not less than one-third of the amount

of such payment to affected units of local government of such State.

ø(B) A plan for this transfer and appropriate allocation of such

portion among such governments shall be included in the benefits

agreement under section 170 covering such payments.

ø(C) In the event of a dispute concerning such plan, the Secretary shall resolve such dispute, consistent with this Act and applicable State law.

ø(b) CONTENTS.—A benefits agreement under section 170 shall

provide that—

ø(1) a Review Panel be established in accordance with section 172;

ø(2) the State or Indian tribe that is party to such agreement

waive its rights under title I to disapprove the recommendation

of a site for a repository;

ø(3) the parties to the agreement shall share with one another information relevant to the licensing process for the repository or monitored retrievable storage facility, as it becomes

available;
91

ø(4) the State or Indian tribe that is party to such agreement

participate in the design of the repository or monitored retrievable storage facility and in the preparation of documents required under law or regulations governing the effects of the facility on the public health and safety; and

ø(5) the State or Indian tribe waive its rights, if any, to impact assistance under sections 116(c)(1)(B)(ii), 116(c)(2),

118(b)(2)(A)(ii), and 118(b)(3).

ø(c) The Secretary shall make payments to the States or affected

Indian tribes under a benefits agreement under this section from

the Waste Fund. The signature of the Secretary on a valid benefits

agreement under section 170 shall constitute a commitment by the

United States to make payments in accordance with such agreement.

øREVIEW PANEL

øSEC. 172. (a) IN GENERAL.—The Review Panel required to be established by section 171(b)(1) of this Act shall consist of a Chairman selected by the Secretary in consultation with the Governor of

the State or governing body of the Indian tribe, as appropriate,

that is party to such agreement and 6 other members as follows:

ø(1) 2 members selected by the Governor of such State or

governing body of such Indian tribe;

ø(2) 2 members selected by units of local government affected by the repository or monitored retrievable storage facility;

ø(3) 1 member to represent persons making payments into

the Waste Fund, to be selected by the Secretary; and

ø(4) 1 member to represent other public interests, to be selected by the Secretary.

ø(b) TERMS.—(1) The members of the Review Panel shall serve

for terms of 4 years each.

ø(2) Members of the Review Panel who are not full-time employees of the Federal Government, shall receive a per diem compensation for each day spent conducting work of the Review Panel, including their necessary travel or other expenses while engaged in

the work of the Review Panel.

ø(3) Expenses of the Panel shall be paid by the Secretary from

the Waste Fund.

ø(c) DUTIES.—The Review Panel shall—

ø(1) advise the Secretary on matters relating to the proposed

repository or monitored retrievable storage facility, including

issues relating to design, construction, operation, and decommissioning of the facility;

ø(2) evaluate performance of the repository or monitored retrievable storage facility, as it considers appropriate;

ø(3) recommend corrective actions to the Secretary;

ø(4) assist in the presentation of State or affected Indian

tribe and local perspectives to the Secretary; and

ø(5) participate in the planning for and the review of

preoperational data on environmental, demographic, and socioeconomic conditions of the site and the local community.
92

ø(d) INFORMATION.—The Secretary shall promptly make available

promptly any information in the Secretary’s possession requested

by the Panel or its Chairman.

ø(e) FEDERAL ADVISORY COMMITTEE ACT.—The requirements of

the Federal Advisory Committee Act shall not apply to a Review

Panel established under this title.

øTERMINATION

øSEC. 173. (a) IN GENERAL.—The Secretary may terminate a benefits agreement under this title if—

ø(1) the site under consideration is disqualified for its failure

to comply with guidelines and technical requirements established by the Secretary in accordance with this Act; or

ø(2) the Secretary determines that the Commission cannot license the facility within a reasonable time.

ø(b) TERMINATION BY STATE OR INDIAN TRIBE.—A State or Indian

tribe may terminate a benefits agreement under this title only if

the Secretary disqualifies the site under consideration for its failure to comply with technical requirements established by the Secretary in accordance with this Act or the Secretary determines that

the Commission cannot license the facility within a reasonable

time.

ø(c) DECISIONS OF THE SECRETARY.—Decisions of the Secretary

under this section shall be in writing, shall be available to Congress and the public, and are not subject to judicial review.

øSUBTITLE G—OTHER BENEFITS

øCONSIDERATION IN SITING FACILITIES

øSEC. 174. The Secretary, in siting Federal research projects,

shall give special consideration to proposals from States where a

repository is located.

øREPORT

øSEC. 175. (a) IN GENERAL.—Within one year of the date of the

enactment of the Nuclear Waste Policy Amendments Act of 1987,

the Secretary shall report to Congress on the potential impacts of

locating a repository at the Yucca Mountain site, including the recommendations of the Secretary for mitigation of such impacts and

a statement of which impacts should be dealt with by the Federal

Government, which should be dealt with by the State with State

resources, including the benefits payments under section 171, and

which should be a joint Federal-State responsibility. The report

under this subsection shall include the analysis of the Secretary of

the authorities available to mitigate these impacts and the appropriate sources of funds for such mitigation.

ø(b) IMPACTS TO BE CONSIDERED.—Potential impacts to be addressed in the report under this subsection (a) shall include impacts on—

ø(1) education, including facilities and personnel for elementary and secondary schools, community colleges, vocational and

technical schools and universities;
93

ø(2) public health, including the facilities and personnel for

treatment and distribution of water, the treatment of sewage,

the control of pests and the disposal of solid waste;

ø(3) law enforcement, including facilities and personnel for

the courts, police and sheriff’s departments, district attorneys

and public defenders and prisons;

ø(4) fire protection, including personnel, the construction of

fire stations, and the acquisition of equipment;

ø(5) medical care, including emergency services and hospitals;

ø(6) cultural and recreational needs, including facilities and

personnel for libraries and museums and the acquisition and

expansion of parks;

ø(7) distribution of public lands to allow for the timely expansion of existing, or creation of new, communities and the

construction of necessary residential and commercial facilities;

ø(8) vocational training and employment services;

ø(9) social services, including public assistance programs, vocational and physical rehabilitation programs, mental health

services, and programs relating to the abuse of alcohol and

controlled substances;

ø(10) transportation, including any roads, terminals, airports, bridges, or railways associated with the facility and the

repair and maintenance of roads, terminals, airports, bridges,

or railways damaged as a result of the construction, operation,

and closure of the facility;

ø(11) equipment and training for State and local personnel

in the management of accidents involving high-level radioactive waste;

ø(12) availability of energy;

ø(13) tourism and economic development, including the potential loss of revenue and future economic growth; and

ø(14) other needs of the State and local governments that

would not have arisen but for the characterization of the site

and the constructions operation, and eventual closure of the repository facility.

øSUBTITLE H—TRANSPORTATION

øTRANSPORTATION

øSEC. 180. (a) No spent nuclear fuel or high-level radioactive

waste may be transported by or for the Secretary under subtitle A

or under subtitle C except in packages that have been certified for

such purposes by the Commission.

ø(b) The Secretary shall abide by regulations of the Commission

regarding advance notification of State and local governments prior

to transportation of spent nuclear fuel or high-level radioactive

waste under subtitle A or under subtitle C.

ø(c) The Secretary shall provide technical assistance and funds

to States for training for public safety officials of appropriate units

of local government and Indian tribes through whose jurisdiction

the Secretary plans to transport spent nuclear fuel or high-level radioactive waste under subtitle A or under subtitle C. Training shall

cover procedures required for safe routine transportation of these
94

materials, as well as procedures for dealing with emergency response situations. The Waste Fund shall be the source of funds for

work carried out under this subsection.

øTITLE II—RESEARCH, DEVELOPMENT, AND DEMONSTRATION REGARDING DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL

øPURPOSE

øSEC. 211. It is the purpose of this title—

ø(1) to provide direction to the Secretary with respect to the

disposal of high-level radioactive waste and spent nuclear fuel;

ø(2) to authorize the Secretary, pursuant to this title—

ø(A) to provide for the construction, operation, and maintenance of a deep geologic test and evaluation facility; and

ø(B) to provide for a focused and integrated high-level

radioactive waste and spent nuclear fuel research and development program, including the development of a test

and evaluation facility to carry out research and provide

an integrated demonstration of the technology for deep

geologic disposal of high-level radioactive waste, and the

development of the facilities to demonstrate dry storage of

spent nuclear fuel; and

ø(3) to provide for an improved cooperative role between the

Federal Government and States, affected Indian tribes, and

units of general local government in the siting of a test and

evaluation facility.

øAPPLICABILITY

øSEC. 212. The provisions of this title are subject to section 8 and

shall not apply to facilities that are used for the disposal of highlevel radioactive waste, low-level radioactive waste, transuranic

waste, or spent nuclear fuel resulting from atomic energy defense

activities.

øIDENTIFICATION OF SITES

øSEC. 213. (a) GUIDELINES.—Not later than 6 months after the

date of the enactment of this Act and notwithstanding the failure

of other agencies to promulgate standards pursuant to applicable

law, the Secretary, in consultation with the Commission, the Director of the Geological Survey, the Administrator, the Council on Environmental Quality, and such other Federal agencies as the Secretary considers appropriate, is authorized to issue, pursuant to

section 553 of title 5, United States Code, general guidelines for the

selection of a site for a test and evaluation facility. Under such

guidelines the Secretary shall specify factors that qualify or disqualify a site for development as a test and evaluation facility,

including factors pertaining to the location of valuable natural resources, hydrogeophysics, seismic activity, and atomic energy defense activities, proximity to water supplies, proximity to populations, the effect upon the rights of users of water, and proximity

to components of the National Park System, the National Wildlife

Refuge System, the National Wild and Scenic Rivers System, the
95

National Wilderness Preservation System, or National Forest

Lands. Such guidelines shall require the Secretary to consider the

various geologic media in which the site for a test and evaluation

facility may be located and, to the extent practicable, to identify

sites in different geologic media. The Secretary shall use guidelines

established under this subsection in considering and selecting sites

under this title.

ø(b) SITE IDENTIFICATION BY THE SECRETARY.—(1) Not later than

1 year after the date of the enactment of this Act, and following

promulgation of guidelines under subsection (a), the Secretary is

authorized to identify 3 or more sites, at least 2 of which shall be

in different geologic media in the continental United States, and at

least 1 of which shall be in media other than salt. Subject to Commission requirements, the Secretary shall give preference to sites

for the test and evaluation facility in media possessing geochemical

characteristics that retard aqueous transport of radionuclides. In

order to provide a greater possible protection of public health and

safety as operating experience is gained at the test and evaluation

facility, and with the exception of the primary areas under review

by the Secretary on the date of the enactment of this Act for the

location of a test and evaluation facility or repository, all sites identified under this subsection shall be more than 15 statute miles

from towns having a population of greater than 1,000 persons as

determined by the most recent census unless such sites contain

high-level radioactive waste prior to identification under this title.

Each identification of a site shall be supported by an environmental assessment, which shall include a detailed statement of the

basis for such identification and of the probable impacts of the

siting research activities planned for such site, and a discussion of

alternative activities relating to siting research that may be undertaken to avoid such impacts. Such environmental assessment shall

include—

ø(A) an evaluation by the Secretary as to whether such site

is suitable for siting research under the guidelines established

under subsection (a);

ø(B) an evaluation by the Secretary of the effects of the

siting research activities at such site on the public health and

safety and the environment;

ø(C) a reasonable comparative evaluation by the Secretary of

such site with other sites and locations that have been considered;

ø(D) a description of the decision process by which such site

was recommended; and

ø(E) an assessment of the regional and local impacts of locating the proposed test and evaluation facility at such site.

ø(2) When the Secretary identifies a site, the Secretary shall as

soon as possible notify the Governor of the State in which such site

is located, or the governing body of the affected Indian tribe where

such site is located, of such identification and the basis of such

identification. Additional sites for the location of the test and evaluation facility authorized in section 302(d) may be identified after

such 1 year period, following the same procedure as if such sites

had been identified within such period.
96

øSITING RESEARCH AND RELATED ACTIVITIES

øSEC. 214. (a) IN GENERAL.—Not later than 30 months after the

date on which the Secretary completes the identification of sites

under section 213, the Secretary is authorized to complete sufficient evaluation of 3 sites to select a site for expanded siting research activities and for other activities under section 218. The

Secretary is authorized to conduct such preconstruction activities

relative to such site selection for the test and evaluation facility as

he deems appropriate. Additional sites for the location of the test

and evaluation facility authorized in section 302(d) may be evaluated after such 30-month period, following the same procedures as

if such sites were to be evaluated within such period.

ø(b) PUBLIC MEETINGS AND ENVIRONMENTAL ASSESSMENT.—Not

later than 6 months after the date on which the Secretary completes the identification of sites under section 213, and before beginning siting research activities, the Secretary shall hold at least

1 public meeting in the vicinity of each site to inform the residents

of the area of the activities to be conducted at such site and to receive their views.

ø(c) RESTRICTIONS.—Except as provided in section 218 with respect to a test and evaluation facility, in conducting siting research

activities pursuant to subsection (a)—

ø(1) the Secretary shall use the minimum quantity of highlevel radioactive waste or other radioactive materials, if any,

necessary to achieve the test or research objectives;

ø(2) the Secretary shall ensure that any radioactive material

used or placed on a site shall be fully retrievable; and

ø(3) upon termination of siting research activities at a site

for any reason, the Secretary shall remove any radioactive material at or in the site as promptly as practicable.

ø(d) TITLE TO MATERIAL.—The Secretary may take title, in the

name of the Federal Government, to the high-level radioactive

waste, spent nuclear fuel, or other radioactive material emplaced

in a test and evaluation facility. If the Secretary takes title to any

such material, the Secretary shall enter into the appropriate financial arrangements described in subsection (a) or (b) of section 302

for the disposal of such material.

øTEST AND EVALUATION FACILITY SITING REVIEW AND REPORTS

øSEC. 215. (a) CONSULTATION AND COOPERATION.—The Governor

of a State, or the governing body of an affected Indian tribe, notified of a site identification under section 213 shall have the right

to participate in a process of consultation and cooperation as soon

as the site involved has been identified pursuant to such section

and throughout the life of the test and evaluation facility. For purposes of this section, the term ‘‘process of consultation and cooperation’’ means a methodology—

ø(1) by which the Secretary—

ø(A) keeps the Governor or governing body involved fully

and currently informed about any potential economic or

public health and safety impacts in all stages of the siting,

development, construction, and operation of a test and

evaluation facility;
97

ø(B) solicits, receives, and evaluates concerns and objections of such Governor or governing body with regard to

such test and evaluation facility on an ongoing basis; and

ø(C) works diligently and cooperatively to resolve such

concerns and objections; and

ø(2) by which the State or affected Indian tribe involved can

exercise reasonable independent monitoring and testing of onsite activities related to all stages of the siting, development,

construction and operation of the test and evaluation facility,

except that any such monitoring and testing shall not unreasonably interfere with onsite activities.

ø(b) WRITTEN AGREEMENTS.—The Secretary shall enter into written agreements with the Governor of the State in which an identified site is located or with the governing body of any affected Indian tribe where an identified site is located in order to expedite

the consultation and cooperation process. Any such written agreement shall specify—

ø(1) procedures by which such Governor or governing body

may study, determine, comment on, and make recommendations with regard to the possible health, safety, and economic

impacts of the test and evaluation facility;

ø(2) procedures by which the Secretary shall consider and respond to comments and recommendations made by such Governor or governing body, including the period in which the Secretary shall so respond;

ø(3) the documents the Department is to submit to such Governor or governing body, the timing for such submissions, the

timing for such Governor or governing body to identify public

health and safety concerns and the process to be followed to try

to eliminate those concerns;

ø(4) procedures by which the Secretary and either such Governor or governing body may review or modify the agreement

periodically; and

ø(5) procedures for public notification of the procedures specified under subparagraphs (A) through (D).

ø(c) LIMITATION.—Except as specifically provided in this section,

nothing in this title is intended to grant any State or affected Indian tribe any authority with respect to the siting, development, or

loading of the test and evaluation facility.

øFEDERAL AGENCY ACTIONS

øSEC. 216. (a) COOPERATION AND COORDINATION.—Federal agencies shall assist the Secretary by cooperating and coordinating with

the Secretary in the preparation of any necessary reports under

this title and the mission plan under section 301.

ø(b) ENVIRONMENTAL REVIEW.—(1) No action of the Secretary or

any other Federal agency required by this title or section 301 with

respect to a test and evaluation facility to be taken prior to the initiation of onsite construction of a test and evaluation facility shall

require the preparation of an environmental impact statement

under section 102(2)(C) of the Environmental Policy Act of 1969 (42

U.S.C. 4332(2)(C)), or to require the preparation of environmental

reports, except as otherwise specifically provided for in this title.
98

ø(2) The Secretary and the heads of all other Federal agencies

shall, to the maximum extent possible, avoid duplication of efforts

in the preparation of reports under the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.).

øRESEARCH AND DEVELOPMENT ON DISPOSAL OF HIGH-LEVEL

RADIOACTIVE WASTE

øSEC. 217. (a) PURPOSE.—Not later than 64 months after the

date of the enactment of this Act, the Secretary is authorized to,

to the extent practicable, begin at a site evaluated under section

214, as part of and as an extension of siting research activities of

such site under such section, the mining and construction of a test

and evaluation facility. Prior to the mining and construction of

such facility, the Secretary shall prepare an environmental assessment. The purpose of such facility shall be—

ø(1) to supplement and focus the repository site characterization process;

ø(2) to provide the conditions under which known technological components can be integrated to demonstrate a functioning repository-like system;

ø(3) to provide a means of identifying, evaluating, and resolving potential repository licensing issues that could not be

resolved during the siting research program conducted under

section 212;

ø(4) to validate, under actual conditions, the scientific models

used in the design of a repository;

ø(5) to refine the design and engineering of repository components and systems and to confirm the predicted behavior of

such components and systems;

ø(6) to supplement the siting data, the generic and specific

geological characteristics developed under section 214 relating

to isolating disposal materials in the physical environment of

a repository;

ø(7) to evaluate the design concepts for packaging, handling,

and emplacement of high-level radioactive waste and spent nuclear fuel at the design rate; and

ø(8) to establish operating capability without exposing workers to excessive radiation.

ø(b) DESIGN.—The Secretary shall design each test and evaluation facility—

ø(1) to be capable of receiving not more than 100 full-sized

canisters of solidified high-level radioactive waste (which canisters shall not exceed an aggregate weight of 100 metric tons),

except that spent nuclear fuel may be used instead of such

waste if such waste cannot be obtained under reasonable conditions;

ø(2) to permit full retrieval of solidified high-level radioactive

waste, or other radioactive material used by the Secretary for

testing, upon completion of the technology demonstration activities; and

ø(3) based upon the principle that the high-level radioactive

waste, spent nuclear fuel, or other radioactive material involved shall be isolated from the biosphere in such a way that
99

the initial isolation is provided by engineered barriers functioning as a system with the geologic environment.

ø(c) OPERATION.—(1) Not later than 88 months after the date of

the enactment of this Act, the Secretary shall begin an in situ testing program at the test and evaluation facility in accordance with

the mission plan developed under section 301, for purposes of—

ø(A) conducting in situ tests of bore hole sealing, geologic

media fracture sealing, and room closure to establish the techniques and performance for isolation of high-level radioactive

waste, spent nuclear fuel, or other radioactive materials from

the biosphere;

ø(B) conducting in situ tests with radioactive sources and

materials to evaluate and improve reliable models for radionuclide migration, absorption, and containment within the engineered barriers and geologic media involved, if the Secretary

finds there is reasonable assurance that such radioactive

sources and materials will not threaten the use of such site as

a repository;

ø(C) conducting in situ tests to evaluate and improve models

for ground water or brine flow through fractured geologic

media;

ø(D) conducting in situ tests under conditions representing

the real time and the accelerated time behavior of the engineered barriers within the geologic environment involved;

ø(E) conducting in situ tests to evaluate the effects of heat

and pressure on the geologic media involved, on the hydrology

of the surrounding area, and on the integrity of the disposal

packages;

ø(F) conducting in situ tests under both normal and abnormal repository conditions to establish safe design limits for disposal packages and to determine the effects of the gross release

of radionuclides into surroundings, and the effects of various

credible failure modes, including—

ø(i) seismic events leading to the coupling of aquifers

through the test and evaluation facility;

ø(ii) thermal pulses significantly greater than the maximum calculated; and

ø(iii) human intrusion creating a direct pathway to the

biosphere; and

ø(G) conducting such other research and development activities as the Secretary considers appropriate, including such activities necessary to obtain the use of high-level radioactive

waste, spent nuclear fuel, or other radioactive materials (such

as any highly radioactive material from the Three Mile Island

nuclear powerplant or from the West Valley Demonstration

Project) for test and evaluation purposes, if such other activities are reasonably necessary to support the repository program and if there is reasonable assurance that the radioactive

sources involved will not threaten the use of such site as a repository.

ø(2) The in situ testing authorized in this subsection shall be designed to ensure that the suitability of the site involved for licensing by the Commission as a repository will not be adversely affected.
100

ø(d) USE OF EXISTING DEPARTMENT FACILITIES.—During the conducting of siting research activities under section 214 and for such

period thereafter as the Secretary considers appropriate, the Secretary shall use Department facilities owned by the Federal Government on the date of the enactment of this Act for the conducting

of generically applicable tests regarding packaging, handling, and

emplacement technology for solidified high-level radioactive waste

and spent nuclear fuel from civilian nuclear activities.

ø(e) ENGINEERED BARRIERS.—The system of engineered barriers

and selected geology used in a test and evaluation facility shall

have a design life at least as long as that which the Commission

requires by regulations issued under this Act, or under the Atomic

Energy Act of 1954 (42 U.S.C. 2011 et seq.), for repositories.

ø(f) ROLE OF COMMISSION.—(1)(A) Not later than 1 year after the

date of the enactment of this Act, the Secretary and the Commission shall reach a written understanding establishing the procedures for review, consultation, and coordination in the planning,

construction, and operation of the test and evaluation facility under

this section. Such understanding shall establish a schedule, consistent with the deadlines set forth in this subtitle, for submission

by the Secretary of, and review by the Commission of and necessary action on—

ø(i) the mission plan prepared under section 301; and

ø(ii) such reports and other information as the Commission

may reasonably require to evaluate any health and safety impacts of the test and evaluation facility.

ø(B) Such understanding shall also establish the conditions

under which the Commission may have access to the test and evaluation facility for the purpose of assessing any public health and

safety concerns that it may have. No shafts may be excavated for

the test and evaluation until the Secretary and the Commission

enter into such understanding.

ø(2) Subject to section 305, the test and evaluation facility, and

the facilities authorized in section 217, shall be constructed and operated as research, development, and demonstration facilities, and

shall not be subject to licensing under section 202 of the Energy

Reorganization Act of 1974 (42 U.S.C. 5842).

ø(3)(A) The Commission shall carry out a continuing analysis of

the activities undertaken under this section to evaluate the adequacy of the consideration of public health and safety issues.

ø(B) The Commission shall report to the President, the Secretary, and the Congress as the Commission considers appropriate

with respect to the conduct of activities under this section.

ø(g) ENVIRONMENTAL REVIEW.—The Secretary shall prepare an

environmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C))

prior to conducting tests with radioactive materials at the test and

evaluation facility. Such environmental impact statement shall incorporate, to the extent practicable, the environmental assessment

prepared under section 217(a). Nothing in this subsection may be

construed to limit siting research activities conducted under section

214. This subsection shall apply only to activities performed exclusively for a test and evaluation facility.
101

ø(h) LIMITATIONS.—(1) If the test and evaluation facility is not located at the site of a repository, the Secretary shall obtain the concurrence of the Commission with respect to the decontamination

and decommissioning of such facility.

ø(2) If the test and evaluation facility is not located at a candidate site or repository site, the Secretary shall conduct only the

portion of the in situ testing program required in subsection (c) determined by the Secretary to be useful in carrying out the purposes

of this Act.

ø(3) The operation of the test and evaluation facility shall terminate not later than—

ø(A) 5 years after the date on which the initial repository begins operation; or

ø(B) at such time as the Secretary determines that the continued operation of a test and evaluation facility is not necessary for research, development, and demonstration purposes;

whichever occurs sooner.

ø(4) Notwithstanding any other provisions of this subsection, as

soon as practicable following any determination by the Secretary,

with the concurrence of the Commission, that the test and evaluation facility is unsuitable for continued operation, the Secretary

shall take such actions as are necessary to remove from such site

any radioactive material placed on such site as a result of testing

and evaluation activities conducted under this section. Such requirement may be waived if the Secretary, with the concurrence of

the Commission, finds that short-term testing and evaluation activities using radioactive material will not endanger the public

health and safety.

øRESEARCH AND DEVELOPMENT ON SPENT NUCLEAR FUEL

øSEC. 218. (a) DEMONSTRATION AND COOPERATIVE PROGRAMS.— The Secretary shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear

fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the Commission may, by

rule, approve for use at the sites of civilian nuclear power reactors

without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission. Not later than 1

year after the date of the enactment of this Act, the Secretary shall

select at least 1, but not more than 3, sites evaluated under section

214 at such power reactors. In selecting such site or sites, the Secretary shall give preference to civilian nuclear power reactors that

will soon have a shortage of interim storage capacity for spent nuclear fuel. Subject to reaching agreement as provided in subsection

(b), the Secretary shall undertake activities to assist such power reactors with demonstration projects at such sites, which may use

one of the following types of alternate storage technologies: spent

nuclear fuel storage casks, caissons, or silos. The Secretary shall

also undertake a cooperative program with civilian nuclear power

reactors to encourage the development of the technology for spent

nuclear fuel rod consolidation in existing power reactor water storage basins.

ø(b) COOPERATIVE AGREEMENTS.—To carry out the programs described in subsection (a), the Secretary shall enter into a coopera-
102

tive agreement with each utility involved that specifies, at a minimum, that—

ø(1) such utility shall select the alternate storage technique

to be used, make the land and spent nuclear fuel available for

the dry storage demonstration, submit and provide site-specific

documentation for a license application to the Commission, obtain a license relating to the facility involved, construct such

facility, operate such facility after licensing, pay the costs required to construct such facility, and pay all costs associated

with the operation and maintenance of such facility;

ø(2) the Secretary shall provide, on a cost-sharing basis, consultative and technical assistance, including design support

and generic licensing documentation, to assist such utility in

obtaining the construction authorization and appropriate license from the Commission; and

ø(3) the Secretary shall provide generic research and development of alternative spent nuclear fuel storage techniques to

enhance utility-provided, at-reactor storage capabilities, if authorized in any other provision of this Act or in any other provision of law.

ø(c) DRY STORAGE RESEARCH AND DEVELOPMENT.—(1) The consultative and technical assistance referred to in subsection (b)(2)

may include, but shall not be limited to, the establishment of a research and development program for the dry storage of not more

than 300 metric tons of spent nuclear fuel at facilities owned by the

Federal Government on the date of the enactment of this Act. The

purpose of such program shall be to collect necessary data to assist

the utilities involved in the licensing process.

ø(2) To the extent available, and consistent with the provisions

of section 135, the Secretary shall provide spent nuclear fuel for

the research and development program authorized in this subsection from spent nuclear fuel received by the Secretary for storage under section 135. Such spent nuclear fuel shall not be subject

to the provisions of section 135(e).

ø(d) FUNDING.—The total contribution from the Secretary from

Federal funds and the use of Federal facilities or services shall not

exceed 25 percent of the total costs of the demonstration program

authorized in subsection (a), as estimated by the Secretary. All remaining costs of such program shall be paid by the utilities involved or shall be provided by the Secretary from the Interim Storage Fund established in section 136.

ø(e) RELATION TO SPENT NUCLEAR FUEL STORAGE PROGRAM.—

The spent nuclear fuel storage program authorized in section 135

shall not be construed to authorize the use of research development

or demonstration facilities owned by the Department unless—

ø(1) a period of 30 calendar days (not including any day in

which either House of Congress is not in session because of adjournment of more than 3 calendar days to a day certain) has

passed after the Secretary has transmitted to the Committee

on Science, Space, and Technology of the House of Representatives and the Committee on Energy and Natural Resources of

the Senate a written report containing a full and complete

statement concerning (A) the facility involved; (B) any nec-
103

essary modifications; (C) the cost thereof; and (D) the impact

on the authorized research and development program; or

ø(2) each such committee, before the expiration of such period, has transmitted to the Secretary a written notice to the

effect that such committee has no objection to the proposed use

of such facility.

øPAYMENTS TO STATES AND INDIAN TRIBES

øSEC. 219. (a) PAYMENTS.—Subject to subsection (b), the Secretary shall make payments to each State or affected Indian tribe

that has entered into an agreement pursuant to section 215. The

Secretary shall pay an amount equal to 100 percent of the expenses

incurred by such State or Indian tribe in engaging in any monitoring, testing, evaluation, or other consultation and cooperation activity under section 215 with respect to any site. The amount paid by

the Secretary under this paragraph shall not exceed $3,000,000 per

year from the date on which the site involved was identified to the

date on which the decontamination and decommission of the facility is complete pursuant to section 217(h). Any such payment may

only be made to a State in which a potential site for a test and

evaluation facility has been identified under section 213, or to an

affected Indian tribe where the potential site has been identified

under such section.

ø(b) LIMITATION.—The Secretary shall make any payment to a

State under subsection (a) only if such State agrees to provide, to

each unit of general local government within the jurisdictional

boundaries of which the potential site or effectively selected site involved is located, at least one-tenth of the payments made by the

Secretary to such State under such subsection. A State or affected

Indian tribe receiving any payment under subsection (a) shall otherwise have discretion to use such payment for whatever purpose

it deems necessary, including the State or tribal activities pursuant

to agreements entered into in accordance with section 215. Annual

payments shall be prorated on a 365-day basis to the specified

dates.

øSTUDY OF RESEARCH AND DEVELOPMENT NEEDS FOR MONITORED

RETRIEVABLE STORAGE PROPOSAL

øSEC. 220. Not later than 6 months after the date of the enactment of this Act, the Secretary shall submit to the Congress a report describing the research and development activities the Secretary considers necessary to develop the proposal required in section 141(b) with respect to a monitored retrievable storage facility.

øJUDICIAL REVIEW

øSEC. 221. Judicial review of research and development activities

under this title shall be in accordance with the provisions of section

119.

øSEC. 222. RESEARCH ON ALTERNATIVES FOR THE PERMANENT

DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE.—The Secretary

shall continue and accelerate a program of research, development,

and investigation of alternative means and technologies for the permanent disposal of high-level radioactive waste from civilian nu-
104

clear activities and Federal research and development activities except that funding shall be made from amounts appropriated to the

Secretary for purposes of carrying out this section. Such program

shall include examination of various waste disposal options.

øTECHNICAL ASSISTANCE TO NON-NUCLEAR WEAPON STATES IN THE

FIELD OF SPENT FUEL STORAGE AND DISPOSAL

øSEC. 223. (a) It shall be the policy of the United States to cooperate with and provide technical assistance to non-nuclear weapon states in the field of spent fuel storage and disposal.

ø(b)(1) Within 90 days of enactment of this Act, the Secretary

and the Commission shall publish a joint notice in the Federal Register stating that the United States is prepared to cooperate with

and provide technical assistance to non-nuclear weapon states in

the fields of at-reactor spent fuel storage; away-from-reactor spent

fuel storage; monitored, retrievable spent fuel storage; geologic disposal of spent fuel; and the health, safety, and environmental regulation of such activities. The notice shall summarize the resources

that can be made available for international cooperation and assistance in these fields through existing programs of the Department

and the Commission, including the availability of: (i) data from

past or ongoing research and development projects; (ii) consultations with expert Department or Commission personnel or contractors; and (iii) liaison with private business entities and organizations working in these fields.

ø(2) The joint notice described in the preceding subparagraph

shall be updated and reissued annually for 5 succeeding years.

ø(c) Following publication of the annual joint notice referred to

in paragraph (2), the Secretary of State shall inform the governments of non-nuclear weapon states and, as feasible, the organizations operating nuclear powerplants in such states, that the United

States is prepared to cooperate with and provide technical assistance to non-nuclear weapon states in the fields of spent fuel storage and disposal, as set forth in the joint notice. The Secretary of

State shall also solicit expressions of interest from non-nuclear

weapon state governments and non-nuclear weapon state nuclear

power reactor operators concerning their participation in expanded

United States cooperation and technical assistance programs in

these fields. The Secretary of State shall transmit any such expressions of interest to the Department and the Commission.

ø(d) With his budget presentation materials for the Department

and the Commission for fiscal years 1984 through 1989, the President shall include funding requests for an expanded program of cooperation and technical assistance with non-nuclear weapon states

in the fields of spent fuel storage and disposal as appropriate in

light of expressions of interest in such cooperation and assistance

on the part of non-nuclear weapon state governments and non-nuclear weapon state nuclear power reactor operators.

ø(e) For the purposes of this subsection, the term ‘‘non-nuclear

weapon state’’ shall have the same meaning as that set forth in article IX of the Treaty on the Non-Proliferation of Nuclear Weapons

(21 U.S.C. 438).
105

ø(f) Nothing in this subsection shall authorize the Department or

the Commission to take any action not authorized under existing

law.

øSUBSEABED DISPOSAL

øSEC. 224. (a) STUDY.—Within 270 days after the date of the enactment of the Nuclear Waste Policy Amendments Act of 1987, the

Secretary shall report to Congress on subseabed disposal of spent

nuclear fuel and high-level radioactive waste. The report under this

subsection shall include—

ø(1) an assessment of the current state of knowledge of subseabed disposal as an alternative technology for disposal of

spent nuclear fuel and high-level radioactive waste;

ø(2) an estimate of the costs of subseabed disposal;

ø(3) an analysis of institutional factors associated with subseabed disposal, including international aspects of a decision of

the United States to proceed with subseabed disposal as an option for nuclear waste management;

ø(4) a full discussion of the environmental and public health

and safety aspects of subseabed disposal;

ø(5) recommendations on alternative ways to structure an effort in research, development, and demonstration with respect

to subseabed disposal; and

ø(6) the recommendations of the Secretary with respect to research, development and demonstration in subseabed disposal

of spent nuclear fuel and high-level radioactive waste.

ø(b) OFFICE OF SUBSEABED DISPOSAL RESEARCH.—(1) There is

hereby established an Office of Subseabed Disposal Research within the Office of Energy Research of the Department of Energy. The

Office shall be headed by the Director, who shall be a member of

the Senior Executive Service appointed by the Director of the Office

of Energy Research, and compensated at a rate determined by applicable law.

ø(2) The Director of the Office of Subseabed Disposal Research

shall be responsible for carrying out research, development, and

demonstration activities on all aspects of subseabed disposal of

high-level radioactive waste and spent nuclear fuel, subject to the

general supervision of the Secretary. The Director of the Office

shall be directly responsible to the Director of the Office of Energy

Research, and the first such Director shall be appointed within 30

days of the date of enactment of the Nuclear Waste Policy Amendments Act of 1987.

ø(3) In carrying out his responsibilities under this Act, the Secretary may make grants to, or enter into contracts with, the Subseabed Consortium described in subsection (d) of this section, and

other persons.

ø(4)(A) Within 60 days of the date of enactment of the Nuclear

Waste Policy Amendments Act of 1987, the Secretary shall establish a university-based Subseabed Consortium involving leading

oceanographic universities and institutions, national laboratories,

and other organizations to investigate the technical and institutional feasibility of subseabed disposal.

ø(B) The Subseabed Consortium shall develop a research plan

and budget to achieve the following objectives by 1995:
106

ø(i) demonstrate the capacity to identify and characterize potential subseabed disposal sites;

ø(ii) develop conceptual designs for a subseabed disposal system, including estimated costs and institutional requirements;

and

ø(iii) identify and assess the potential impacts of subseabed

disposal on the human and marine environment.

ø(C) In 1990, and again in 1995, the Subseabed Consortium shall

report to Congress on the progress being made in achieving the objectives of paragraph (2).

ø(5) The Director of the Office of Subseabed Disposal Research

shall annually prepare and submit a report to the Congress on the

activities and expenditures of the Office.

øTITLE III—OTHER PROVISIONS RELATING TO

RADIOACTIVE WASTE

øMISSION PLAN

øSEC. 301. (a) CONTENTS OF MISSION PLAN.—The Secretary shall

prepare a comprehensive report, to be known as the mission plan,

which shall provide an informational basis sufficient to permit informed decisions to be made in carrying out the repository program

and the research, development, and demonstration programs required under this Act. The mission plan shall include—

ø(1) an identification of the primary scientific, engineering,

and technical information, including any necessary demonstration of engineering or systems integration, with respect to the

siting and construction of a test and evaluation facility and repositories;

ø(2) an identification of any information described in paragraph (1) that is not available because of any unresolved scientific, engineering, or technical questions, or undemonstrated

engineering or systems integration, a schedule including specific major milestones for the research, development, and technology demonstration program required under this Act and any

additional activities to be undertaken to provide such information, a schedule for the activities necessary to achieve important programmatic milestones, and an estimate of the costs required to carry out such research, development, and demonstration programs;

ø(3) an evaluation of financial, political, legal, or institutional problems that may impede the implementation of this

Act, the plans of the Secretary to resolve such problems, and

recommendations for any necessary legislation to resolve such

problems;

ø(4) any comments of the Secretary with respect to the purpose and program of the test and evaluation facility;

ø(5) a discussion of the significant results of research and development programs conducted and the implications for each of

the different geologic media under consideration for the siting

of repositories, and, on the basis of such information, a comparison of the advantages and disadvantages associated with

the use of such media for repository sites;

ø(6) the guidelines issued under section 112(a);
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ø(7) a description of known sites at which site characterization activities should be undertaken, a description of such

siting characterization activities, including the extent of

planned excavations, plans for onsite testing with radioactive

or nonradioactive material, plans for any investigations activities which may affect the capability of any such site to isolate

high-level radioactive waste or spent nuclear fuel, plans to control any adverse, safety-related impacts from such site characterization activities, and plans for the decontamination and decommissioning of such site if it is determined unsuitable for licensing as a repository;

ø(8) an identification of the process for solidifying high-level

radioactive waste or packaging spent nuclear fuel, including a

summary and analysis of the data to support the selection of

the solidification process and packaging techniques, an analysis of the requirements for the number of solidification packaging facilities needed, a description of the state of the art for the

materials proposed to be used in packaging such waste or

spent fuel and the availability of such materials including impacts on strategic supplies and any requirements for new or reactivated facilities to produce any such materials needed, and

a description of a plan, and the schedule for implementing

such plan, for an aggressive research and development program to provide when needed a high-integrity disposal package

at a reasonable price;

ø(9) an estimate of (A) the total repository capacity required

to safely accommodate the disposal of all high-level radioactive

waste and spent nuclear fuel expected to be generated through

December 31, 2020, in the event that no commercial reprocessing of spent nuclear fuel occurs, as well as the repository capacity that will be required if such reprocessing does occur; (B)

the number and type of repositories required to be constructed

to provide such disposal capacity; (C) a schedule for the construction of such repositories; and (D) an estimate of the period

during which each repository listed in such schedule will be accepting high-level radioactive waste or spent nuclear fuel for

disposal;

ø(10) an estimate, on an annual basis, of the costs required

(A) to construct and operate the repositories anticipated to be

needed under paragraph (9) based on each of the assumptions

referred to in such paragraph; (B) to construct and operate a

test and evaluation facility, or any other facilities, other than

repositories described in subparagraph (A), determined to be

necessary; and (C) to carry out any other activities under this

Act; and

ø(11) an identification of the possible adverse economic and

other impacts to the State or Indian tribe involved that may

arise from the development of a test and evaluation facility or

repository at a site.

ø(b) SUBMISSION OF MISSION PLAN.—(1) Not later than 15

months after the date of the enactment of this Act, the Secretary

shall submit a draft mission plan to the States, the affected Indian

tribes, the Commission, and other Government agencies as the Secretary deems appropriate for their comments.
108

ø(2) In preparing any comments on the mission plan, such agencies shall specify with precision any objections that they may have.

Upon submission of the mission plan to such agencies, the Secretary shall publish a notice in the Federal Register of the submission of the mission plan and of its availability for public inspection,

and, upon receipt of any comments of such agencies respecting the

mission plan, the Secretary shall publish a notice in the Federal

Register of the receipt of comments and of the availability of the

comments for public inspection. If the Secretary does not revise the

mission plan to meet objections specified in such comments, the

Secretary shall publish in the Federal Register a detailed statement for not so revising the mission plan.

ø(3) The Secretary, after reviewing any other comments made by

such agencies and revising the mission plan to the extent that the

Secretary may consider to be appropriate, shall submit the mission

plan to the appropriate committees of the Congress not later than

17 months after the date of the enactment of this Act. The mission

plan shall be used by the Secretary at the end of the first period

of 30 calendar days (not including any day on which either House

of Congress is not in session because of adjournment of more than

3 calendar days to a day certain) following receipt of the mission

plan by the Congress.

øNUCLEAR WASTE FUND

øSEC. 302. (a) CONTRACTS.—(1) In the performance of his functions under this Act, the Secretary is authorized to enter into contracts with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the acceptance of title, subsequent transportation, and disposal of such

waste or spent fuel. Such contracts shall provide for payment to the

Secretary of fees pursuant to paragraphs (2) and (3) sufficient to

offset expenditures described in subsection (d).

ø(2) For electricity generated by a civilian nuclear power reactor

and sold on or after the date 90 days after the date of enactment

of this Act, the fee under paragraph (1) shall be equal to 1.0 mil

per kilowatt-hour.

ø(3) For spent nuclear fuel, or solidified high-level radioactive

waste derived from spent nuclear fuel, which fuel was used to generate electricity in a civilian nuclear power reactor prior to the application of the fee under paragraph (2) to such reactor, the Secretary shall, not later than 90 days after the date of enactment of

this Act, establish a 1 time fee per kilogram of heavy metal in

spent nuclear fuel, or in solidified high-level radioactive waste.

Such fee shall be in an amount equivalent to an average charge of

1.0 mil per kilowatt-hour for electricity generated by such spent

nuclear fuel, or such solidified high-level waste derived therefrom,

to be collected from any person delivering such spent nuclear fuel

or high-level waste, pursuant to section 123, to the Federal Government. Such fee shall be paid to the Treasury of the United States

and shall be deposited in the separate fund established by subsection (c) 126(b). In paying such a fee, the person delivering spent

fuel, or solidified high-level radioactive wastes derived therefrom,

to the Federal Government shall have no further financial obligation to the Federal Government for the long-term storage and per-
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manent disposal of such spent fuel, or the solidified high-level radioactive waste derived therefrom.

ø(4) Not later than 180 days after the date of enactment of this

Act, the Secretary shall establish procedures for the collection and

payment of the fees established by paragraph (2) and paragraph

(3). The Secretary shall annually review the amount of the fees established by paragraphs (2) and (3) above to evaluate whether collection of the fee will provide sufficient revenues to offset the costs

as defined in subsection (d) herein. In the event the Secretary determines that either insufficient or excess revenues are being collected, in order to recover the costs incurred by the Federal Government that are specified in subsection (d), the Secretary shall

propose an adjustment to the fee to insure full cost recovery. The

Secretary shall immediately transmit this proposal for such an adjustment to Congress. The adjusted fee proposed by the Secretary

shall be effective after a period of 90 days of continuous session

have elapsed following the receipt of such transmittal unless during such 90-day period either House of Congress adopts a resolution disapproving the Secretary’s proposed adjustment in accordance with the procedures set forth for congressional review of an

energy action under section 551 of the Energy Policy and Conservation Act.

ø(5) Contracts entered into under this section shall provide

that—

ø(A) following commencement of operation of a repository,

the Secretary shall take title to the high-level radioactive

waste or spent nuclear fuel involved as expeditiously as practicable upon the request of the generator or owner of such

waste or spent fuel; and

ø(B) in return for the payment of fees established by this

section, the Secretary, beginning not later than January 31,

1998, will dispose of the high-level radioactive waste or spent

nuclear fuel involved as provided in this subtitle.

ø(6) The Secretary shall establish in writing criteria setting forth

the terms and conditions under which such disposal services shall

be made available.

ø(b) ADVANCE CONTRACTING REQUIREMENT.—(1)(A) The Commission shall not issue or renew a license to any person to use a utilization or production facility under the authority of section 103 or

104 of the Atomic Energy Act of 1954 (42 U.S.C. 2133, 2134)

unless—

ø(i) such person has entered into a contract with the Secretary under this section; or

ø(ii) the Secretary affirms in writing that such person is actively and in good faith negotiating with the Secretary for a

contract under this section.

ø(B) The Commission, as it deems necessary or appropriate, may

require as a precondition to the issuance or renewal of a license

under section 103 or 104 of the Atomic Energy Act of 1954 (42

U.S.C. 2133, 2134) that the applicant for such license shall have

entered into an agreement with the Secretary for the disposal of

high-level radioactive waste and spent nuclear fuel that may result

from the use of such license.
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ø(2) Except as provided in paragraph (1), no spent nuclear fuel

or high-level radioactive waste generated or owned by any person

(other than a department of the United States referred to in section

101 or 102 of title 5, United States Code) may be disposed of by

the Secretary in any repository constructed under this Act unless

the generator or owner of such spent fuel or waste has entered into

a contract with the Secretary under this section by not later than—

ø(A) June 30, 1983; or

ø(B) the date on which such generator or owner commences

generation of, or takes title to, such spent fuel or waste;

whichever occurs later.

ø(3) The rights and duties of a party to a contract entered into

under this section may be assignable with transfer of title to the

spent nuclear fuel or high-level radioactive waste involved.

ø(4) No high-level radioactive waste or spent nuclear fuel generated or owned by any department of the United States referred

to in section 101 or 102 of title 5, United States Code, may be disposed of by the Secretary in any repository constructed under this

Act unless such department transfers to the Secretary, for deposit

in the Nuclear Waste Fund, amounts equivalent to the fees that

would be paid to the Secretary under the contracts referred to in

this section if such waste or spent fuel were generated by any other

person.

ø(c) ESTABLISHMENT OF NUCLEAR WASTE FUND.—There hereby is

established in the Treasury of the United States a separate fund,

to be known as the Nuclear Waste Fund. The Waste Fund shall

consist of—

ø(1) all receipts, proceeds, and recoveries realized by the Secretary under subsections (a), (b), and (e), which shall be deposited in the Waste Fund immediately upon their realization;

ø(2) any appropriations made by the Congress to the Waste

Fund; and

ø(3) any unexpended balances available on the date of the

enactment of this Act for functions or activities necessary or incident to the disposal of civilian high-level radioactive waste or

civilian spent nuclear fuel, which shall automatically be transferred to the Waste Fund on such date.

ø(d) USE OF WASTE FUND.—The Secretary may make expenditures from the Waste Fund, subject to subsection (e), only for purposes of radioactive waste disposal activities under titles I and II,

including—

ø(1) the identification, development, licensing, construction,

operation, decommissioning, and post-decommissioning maintenance and monitoring of any repository, monitored, retrievable

storage facility or test and evaluation facility constructed

under this Act;

ø(2) the conducting of nongeneric research, development, and

demonstration activities under this Act;

ø(3) the administrative cost of the radioactive waste disposal

program;

ø(4) any costs that may be incurred by the Secretary in connection with the transportation, treating, or packaging of spent

nuclear fuel or high-level radioactive waste to be disposed of in
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a repository, to be stored in a monitored, retrievable storage

site or to be used in a test and evaluation facility;

ø(5) the costs associated with acquisition, design, modification, replacement, operation, and construction of facilities at a

repository site, a monitored, retrievable storage site or a test

and evaluation facility site and necessary or incident to such

repository, monitored, retrievable storage facility or test and

evaluation facility; and

ø(6) the provision of assistance to States, units of general

local government, and Indian tribes under sections 116, 118,

and 219.

No amount may be expended by the Secretary under this subtitle

for the construction or expansion of any facility unless such construction or expansion is expressly authorized by this or subsequent legislation. The Secretary hereby is authorized to construct

one repository and one test and evaluation facility.

ø(e) ADMINISTRATION OF WASTE FUND.—(1) The Secretary of the

Treasury shall hold the Waste Fund and, after consultation with

the Secretary, annually report to the Congress on the financial condition and operations of the Waste Fund during the preceding fiscal

year.

ø(2) The Secretary shall submit the budget of the Waste Fund to

the Office of Management and Budget triennially along with the

budget of the Department of Energy submitted at such time in accordance with chapter 11 of title 31, United States Code. The budget of the Waste Fund shall consist of the estimates made by the

Secretary of expenditures from the Waste Fund and other relevant

financial matters for the succeeding 3 fiscal years, and shall be included in the Budget of the United States Government. The Secretary may make expenditures from the Waste Fund, subject to appropriations which shall remain available until expended. Appropriations shall be subject to triennial authorization.

ø(3) If the Secretary determines that the Waste Fund contains at

any time amounts in excess of current needs, the Secretary may request the Secretary of the Treasury to invest such amounts, or any

portion of such amounts as the Secretary determines to be appropriate, in obligations of the United States—

ø(A) having maturities determined by the Secretary of the

Treasury to be appropriate to the needs of the Waste Fund;

and

ø(B) bearing interest at rates determined to be appropriate

by the Secretary of the Treasury, taking into consideration the

current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the maturities of such investments, except

that the interest rate on such investments shall not exceed the

average interest rate applicable to existing borrowings.

ø(4) Receipts, proceeds, and recoveries realized by the Secretary

under this section, and expenditures of amounts from the Waste

Fund, shall be exempt from annual apportionment under the provisions of subchapter II of chapter 15 of title 31, United States Code.

ø(5) If at any time the moneys available in the Waste Fund are

insufficient to enable the Secretary to discharge his responsibilities

under this subtitle, the Secretary shall issue to the Secretary of the
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Treasury obligations in such forms and denominations, bearing

such maturities, and subject to such terms and conditions as may

be agreed to by the Secretary and the Secretary of the Treasury.

The total of such obligations shall not exceed amounts provided in

appropriation Acts. Redemption of such obligations shall be made

by the Secretary from moneys available in the Waste Fund. Such

obligations shall bear interest at a rate determined by the Secretary of the Treasury, which shall be not less than a rate determined by taking into consideration the average market yield on

outstanding marketable obligations of the United States of comparable maturities during the month preceding the issuance of the

obligations under this paragraph. The Secretary of the Treasury

shall purchase any issued obligations, and for such purpose the

Secretary of the Treasury is authorized to use as a public debt

transaction the proceeds from the sale of any securities issued

under chapter 31 of title 31, United States Code, and the purposes

for which securities may be issued under such Act are extended to

include any purchase of such obligations. The Secretary of the

Treasury may at any time sell any of the obligations acquired by

him under this paragraph. All redemptions, purchases, and sales

by the Secretary of the Treasury of obligations under this paragraph shall be treated as public debt transactions of the United

States.

ø(6) Any appropriations made available to the Waste Fund for

any purpose described in subsection (d) shall be repaid into the

general fund of the Treasury, together with interest from the date

of availability of the appropriations until the date of repayment.

Such interest shall be paid on the cumulative amount of appropriations available to the Waste Fund, less the average undisbursed

cash balance in the Waste Fund account during the fiscal year involved. The rate of such interest shall be determined by the Secretary of the Treasury taking into consideration the average market yield during the month preceding each fiscal year on outstanding marketable obligations of the United States of comparable maturity. Interest payments may be deferred with the approval of the

Secretary of the Treasury, but any interest payments so deferred

shall themselves bear interest.

øALTERNATIVE MEANS OF FINANCING

øSEC. 303. The Secretary shall undertake a study with respect

to alternative approaches to managing the construction and operation of all civilian radioactive waste management facilities, including the feasibility of establishing a private corporation for such

purposes. In conducting such study, the Secretary shall consult

with the Director of the Office of Management and Budget, the

Chairman of the Commission, and such other Federal agency representatives as may be appropriate. Such study shall be completed,

and a report containing the results of such study shall be submitted to the Congress, within 1 year after the date of the enactment

of this Act.
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øOFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT

øSEC. 304. (a) ESTABLISHMENT.—There hereby is established

within the Department of Energy an Office of Civilian Radioactive

Waste Management. The Office shall be headed by a Director, who

shall be appointed by the President, by and with the advice and

consent of the Senate, and who shall be compensated at the rate

payable for level IV of the Executive Schedule under section 5315

of title 5, United States Code.

ø(b) FUNCTIONS OF DIRECTOR.—The Director of the Office shall

be responsible for carrying out the functions of the Secretary under

this Act, subject to the general supervision of the Secretary. The

Director of the Office shall be directly responsible to the Secretary.

ø(c) ANNUAL REPORT TO CONGRESS.—The Director of the Office

shall annually prepare and submit to the Congress a comprehensive report on the activities and expenditures of the Office.

ø(d) ANNUAL AUDIT BY COMPTROLLER GENERAL.—The Comptroller General of the United States shall annually make an audit of

the Office, in accordance with such regulations as the Comptroller

General may prescribe. The Comptroller General shall have access

to such books, records, accounts, and other materials of the Office

as the Comptroller General determines to be necessary for the

preparation of such audit. The Comptroller General shall submit to

the Congress a report on the results of each audit conducted under

this section.

øLOCATION OF TEST AND EVALUATION FACILITY

øSEC. 305. (a) REPORT TO CONGRESS.—Not later than 1 year after

the date of the enactment of this Act, the Secretary shall transmit

to the Congress a report setting forth whether the Secretary plans

to locate the test and evaluation facility at the site of a repository.

ø(b) PROCEDURES.—(1) If the test and evaluation facility is to be

located at any candidate site or repository site (A) site selection

and development of such facility shall be conducted in accordance

with the procedures and requirements established in title I with respect to the site selection and development of repositories; and (B)

the Secretary may not commence construction of any surface facility for such test and evaluation facility prior to issuance by the

Commission of a construction authorization for a repository at the

site involved.

ø(2) No test and evaluation facility may be converted into a repository unless site selection and development of such facility was

conducted in accordance with the procedures and requirements established in title I with respect to the site selection and development of repositories.

ø(3) The Secretary may not commence construction of a test and

evaluation facility at a candidate site or site recommended as the

location for a repository prior to the date on which the designation

of such site is effective under section 115.

øNUCLEAR REGULATORY COMMISSION TRAINING AUTHORIZATION

øSEC. 306. NUCLEAR REGULATORY COMMISSION TRAINING AUTHORIZATION.—The Nuclear Regulatory Commission is authorized

and directed to promulgate regulations, or other appropriate Com-
114

mission regulatory guidance, for the training and qualifications of

civilian nuclear powerplant operators, supervisors, technicians and

other appropriate operating personnel. Such regulations or guidance shall establish simulator training requirements for applicants

for civilian nuclear powerplant operator licenses and for operator

requalification programs; requirements governing NRC administration of requalification examinations; requirements for operating

tests at civilian nuclear powerplant simulators, and instructional

requirements for civilian nuclear powerplant licensee personnel

training programs. Such regulations or other regulatory guidance

shall be promulgated by the Commission within the 12-month period following enactment of this Act, and the Commission within

the 12-month period following enactment of this Act shall submit

a report to Congress setting forth the actions the Commission has

taken with respect to fulfilling its obligations under this section.

øTITLE IV—NUCLEAR WASTE NEGOTIATOR

øDEFINITION

øSEC. 401. For purposes of this title, the term ‘‘State’’ means

each of the several States and the District of Columbia.

øTHE OFFICE OF THE NUCLEAR WASTE NEGOTIATOR

øSEC. 402. (a) ESTABLISHMENT.—There is established the Office

of the Nuclear Waste Negotiator that shall be an independent establishment in the executive branch.

ø(b) THE NUCLEAR WASTE NEGOTIATOR.—(1) The Office shall be

headed by a Nuclear Waste Negotiator who shall be appointed by

the President, by and with the advice and consent of the Senate.

The Negotiator shall hold office at the pleasure of the President,

and shall be compensated at the rate provided for level III of the

Executive Schedule in section 5314 of title 5, United States Code.

ø(2) The Negotiator shall attempt to find a State or Indian tribe

willing to host a repository or monitored retrievable storage facility

at a technically qualified site on reasonable terms and shall negotiate with any State or Indian tribe which expresses an interest in

hosting a repository or monitored retrievable storage facility.

øDUTIES OF THE NEGOTIATOR

øSEC. 403. (a) NEGOTIATIONS WITH POTENTIAL HOSTS.—(1) The

Negotiator shall—

ø(A) seek to enter into negotiations on behalf of the United

States with—

ø(i) the Governor of any State in which a potential site

is located; and

ø(ii) the governing body of any Indian tribe on whose

reservation a potential site is located; and

ø(B) attempt to reach a proposed agreement between the

United States and any such State or Indian tribe specifying

the terms and conditions under which such State or tribe

would agree to host a repository or monitored retrievable storage facility within such State or reservation.
115

ø(2) In any case in which State law authorizes any person or entity other than the Governor to negotiate a proposed agreement

under this section on behalf of the State, any reference in this title

to the Governor shall be considered to refer instead to such other

person or entity.

ø(b) CONSULTATION WITH AFFECTED STATES, SUBDIVISIONS OF

STATES, AND TRIBES.—In addition to entering into negotiations

under subsection (a), the Negotiator shall consult with any State,

affected unit of local government, or any Indian tribe that the Negotiator determines may be affected by the siting of a repository or

monitored retrievable storage facility and may include in any proposed agreement such terms and conditions relating to the interest

of such States, affected units of local government, or Indian tribes

as the Negotiator determines to be reasonable and appropriate.

ø(c) CONSULTATION WITH OTHER FEDERAL AGENCIES.—The Negotiator may solicit and consider the comments of the Secretary, the

Nuclear Regulatory Commission, or any other Federal agency on

the suitability of any potential site for site characterization. Nothing in this subsection shall be construed to require the Secretary,

the Nuclear Regulatory Commission, or any other Federal agency

to make a finding that any such site is suitable for site characterization.

ø(d) PROPOSED AGREEMENT.—(1) The Negotiator shall submit to

the Congress any proposed agreement between the United States

and a State or Indian tribe negotiated under subsection (a) and an

environmental assessment prepared under section 404(a) for the

site concerned.

ø(2) Any such proposed agreement shall contain such terms and

conditions (including such financial and institutional arrangements) as the Negotiator and the host State or Indian tribe determine to be reasonable and appropriate and shall contain such provisions as are necessary to preserve any right to participation or

compensation of such State, affected unit of local government, or

Indian tribe under sections 116(c), 117, and 118(b).

ø(3)(A) No proposed agreement entered into under this section

shall have legal effect unless enacted into Federal Law.

ø(B) A State or Indian tribe shall enter into an agreement under

this section in accordance with the laws of such State or tribe.

Nothing in this section may be construed to prohibit the disapproval of a proposed agreement between a State and the United

States under this section by a referendum or an act of the legislature of such State.

ø(4) Notwithstanding any proposed agreement under this section,

the Secretary may construct a repository or monitored retrievable

storage facility at a site agreed to under this title only if authorized

by the Nuclear Regulatory Commission in accordance with the

Atomic Energy Act of 1954 (42 U.S.C. 2012 et seq.), title II of the

Energy Reorganization Act of 1982 (42 U.S.C. 5841 et seq.) and any

other law applicable to authorization of such construction.

øENVIRONMENTAL ASSESSMENT OF SITES

øSEC. 404. (a) IN GENERAL.—Upon the request of the Negotiator,

the Secretary shall prepare an environmental assessment of any

site that is the subject of negotiations under section 403(a).
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ø(b) CONTENTS.—(1) Each environmental assessment prepared

for a repository site shall include a detailed statement of the probable impacts of characterizing such site and the construction and

operation of a repository at such site.

ø(2) Each environmental assessment prepared for a monitored

retrievable storage facility site shall include a detailed statement

of the probable impacts of construction and operation of such a facility at such site.

ø(c) JUDICIAL REVIEW.—The issuance of an environmental assessment under subsection (a) shall be considered to be a final agency

action subject to judicial review in accordance with the provisions

of chapter 7 of title 5, United States Code, and section 119.

ø(d) PUBLIC HEARINGS.—(1) In preparing an environmental assessment for any repository or monitored retrievable storage facility site, the Secretary shall hold public hearings in the vicinity of

such site to inform the residents of the area in which such site is

located that such site is being considered and to receive their comments.

ø(2) At such hearings, the Secretary shall solicit and receive any

recommendations of such residents with respect to issues that

should be addressed in the environmental assessment required

under subsection (a) and the site characterization plan described in

section 113(b)(1).

ø(e) PUBLIC AVAILABILITY.—Each environmental assessment prepared under subsection (a) shall be made available to the public.

ø(f) EVALUATION OF SITES.—(1) In preparing an environmental

assessment under subsection (a), the Secretary shall use available

geophysical, geologic, geochemical and hydrologic, and other information and shall not conduct any preliminary borings or excavations at any site that is the subject of such assessment unless—

ø(A) such preliminary boring or excavation activities were in

progress on or before the date of the enactment of the Nuclear

Waste Policy Amendments Act of 1987;

ø(B) the Secretary certifies that, in the absence of preliminary

borings or excavations, adequate information will not be available

to satisfy the requirements of this Act or any other law.

ø(2) No preliminary boring or excavation conducted under this

section shall exceed a diameter of 40 inches.

øSITE CHARACTERIZATION; LICENSING

øSEC. 405. (a) SITE CHARACTERIZATION.—Upon enactment of legislation to implement an agreement to site a repository negotiated

under section 403(a), the Secretary shall conduct appropriate site

characterization activities for the site that is the subject of such

agreement subject to the conditions and terms of such agreement.

Any such site characterization activities shall be conducted in accordance with section 113, except that references in such section to

the Yucca Mountain site and the State of Nevada shall be deemed

to refer to the site that is the subject of the agreement and the

State or Indian tribe entering into the agreement.

ø(b) LICENSING.—(1) Upon the completion of site characterization

activities carried out under subsection (a), the Secretary shall submit to the Nuclear Regulatory Commission an application for construction authorization for a repository at such site.
117

ø(2) The Nuclear Regulatory Commission shall consider an application for a construction authorization for a repository or monitored

retrievable storage facility in accordance with the laws applicable

to such applications, except that the Nuclear Regulatory Commission shall issue a final decision approving or disapproving the issuance of a construction authorization not later than 3 years after the

date of the submission of such application.

øMONITORED RETRIEVABLE STORAGE

øSEC. 406. (a) CONSTRUCTION AND OPERATION.—Upon enactment

of legislation to implement an agreement negotiated under section

403(a) to site a monitored retrievable storage facility, the Secretary

shall construct and operate such facility as part of an integrated

nuclear waste management system in accordance with the terms

and conditions of such agreement.

ø(b) FINANCIAL ASSISTANCE.—The Secretary may make grants to

any State, Indian tribe, or affected unit of local government to assess the feasibility of siting a monitored retrievable storage facility

under this section at a site under the jurisdiction of such State,

tribe, or affected unit of local government.

øENVIRONMENTAL IMPACT STATEMENT

øSEC. 407. (a) IN GENERAL.—Issuance of a construction authorization for a repository or monitored retrievable storage facility

under section 405(b) 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.).

ø(b) PREPARATION.—A final environmental impact statement

shall be prepared by the Secretary under such Act and shall accompany any application to the Nuclear Regulatory Commission for a

construction authorization.

ø(c) ADOPTION.—(1) Any such environmental impact statement

shall, to the extent practicable, be adopted by the Nuclear Regulatory Commission, in accordance with section 1506.3 of title 40,

Code of Federal Regulations, in connection with the issuance by the

Nuclear Regulatory Commission of a construction authorization

and license for such repository or monitored retrievable storage facility.

ø(2)(A) In any such statement prepared with respect to a repository to be constructed under this title at the Yucca Mountain site,

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.

ø(B) In any such statement prepared with respect to a repository

to be constructed under this title at a site other than the Yucca

Mountain site, the Nuclear Regulatory Commission need not consider the need for a repository, the time of initial availability of a

repository, or nongeologic alternatives to such site but shall consider the Yucca Mountain site as an alternate to such site in the

preparation of such statement.
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øADMINISTRATIVE POWERS OF THE NEGOTIATOR

øSEC. 408. In carrying out his functions under this title, the Negotiator may—

ø(1) appoint such officers and employees as he determines to

be necessary and prescribe their duties;

ø(2) obtain services as authorized by section 3109 of title 5,

United States Code, at rates not to exceed the rate prescribed

for grade GS–18 of the General Schedule by section 5332 of

title 5, United States Code;

ø(3) promulgate such rules and regulations as may be necessary to carry out such functions;

ø(4) utilize the services, personnel, and facilities of other

Federal agencies (subject to the consent of the head of any

such agency);

ø(5) for purposes of performing administrative functions

under this title, and to the extent funds are appropriated,

enter into and perform such contracts, leases, cooperative

agreements, or other transactions as may be necessary and on

such terms as the Negotiator determines to be appropriate,

with any agency or instrumentality of the United States, or

with any public or private person or entity;

ø(6) accept voluntary and uncompensated services, notwithstanding the provisions of sections 1342 of title 31, United

States Code;

ø(7) adopt an official seal, which shall be judicially noticed;

ø(8) use the United States mails in the same manner and

under the same conditions as other departments and agencies

of the United States;

ø(9) hold such hearings as are necessary to determine the

views of interested parties and the general public; and

ø(10) appoint advisory committees under the Federal Advisory Committee Act (5 U.S.C. App.).

øCOOPERATION OF OTHER DEPARTMENTS AND AGENCIES

øSEC. 409. Each department, agency, and instrumentality of the

United States, including any independent agency, may furnish the

Negotiator such information as he determines to be necessary to

carry out his functions under this title.

øTERMINATION OF THE OFFICE

øSEC. 410. The Office shall cease to exist not later than 30 days

after the date 7 years after the date of the enactment of the Nuclear Waste Policy Amendments Act of 1987.

øAUTHORIZATION OF APPROPRIATIONS

øSEC. 411. Notwithstanding subsection (d) of section 302, and

subject to subsection (e) of such section, there are authorized to be

appropriated for expenditures from amounts in the Waste Fund established in subsection (c) of such section, such sums as may be

necessary to carry out the provisions of this title.
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øTITLE V—NUCLEAR WASTE TECHNICAL REVIEW BOARD

øDEFINITIONS

øSEC. 501. As used in this title:

ø(1) The term ‘‘Chairman’’ means the Chairman of the Nuclear Waste Technical Review Board.

ø(2) The term ‘‘Board’’ means the Nuclear Waste Technical

Review Board established under section 502.

øNUCLEAR WASTE TECHNICAL REVIEW BOARD

øSEC. 502. (a) ESTABLISHMENT.—There is established a Nuclear

Waste Technical Review Board that shall be an independent establishment within the executive branch.

ø(b) MEMBERS.—(1) The Board shall consist of 11 members who

shall be appointed by the President not later than 90 days after the

date of the enactment of the Nuclear Waste Policy Amendments

Act of 1987 from among persons nominated by the National Academy of Sciences in accordance with paragraph (3).

ø(2) The President shall designate a member of the Board to

serve as chairman.

ø(3)(A) The National Academy of Sciences shall, not later than

90 days after the date of the enactment of the Nuclear Waste Policy Amendments Act of 1987, nominate not less than 22 persons for

appointment to the Board from among persons who meet the qualifications described in subparagraph (C).

ø(B) The National Academy of Sciences shall nominate not less

than 2 persons to fill any vacancy on the Board from among persons who meet the qualifications described in subparagraph (C).

ø(C)(i) Each person nominated for appointment to the Board

shall be—

ø(I) eminent in a field of science or engineering, including

environmental sciences; and

ø(II) selected solely on the basis of established records of distinguished service.

ø(ii) The membership of the Board shall be representative of the

broad range of scientific and engineering disciplines related to activities under this title.

ø(iii) No person shall be nominated for appointment to the Board

who is an employee of—

ø(I) the Department of Energy;

ø(II) a national laboratory under contract with the Department of Energy; or

ø(III) an entity performing high-level radioactive waste or

spent nuclear fuel activities under contract with the Department of Energy.

ø(4) Any vacancy on the Board shall be filled by the nomination

and appointment process described in paragraphs (1) and (3).

ø(5) Members of the Board shall be appointed for terms of 4

years, each such term to commence 120 days after the date of enactment of the Nuclear Waste Policy Amendments Act of 1987, except that of the 11 members first appointed to the Board, 5 shall

serve for 2 years and 6 shall serve for 4 years, to be designated by

the President at the time of appointment.
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øFUNCTIONS

øSEC. 503. The Board shall evaluate the technical and scientific

validity of activities undertaken by the Secretary after the date of

the enactment of the Nuclear Waste Policy Amendments Act of

1987, including—

ø(1) site characterization activities; and

ø(2) activities relating to the packaging or transportation of

high-level radioactive waste or spent nuclear fuel.

øINVESTIGATORY POWERS

øSEC. 504. (a) HEARINGS.—Upon request of the Chairman or a

majority of the members of the Board, the Board may hold such

hearings, sit and act at such times and places, take such testimony,

and receive such evidence, as the Board considers appropriate. Any

member of the Board may administer oaths or affirmations to witnesses appearing before the Board.

ø(b) PRODUCTION OF DOCUMENTS.—(1) Upon the request of the

Chairman or a majority of the members of the Board, and subject

to existing law, the Secretary (or any contractor of the Secretary)

shall provide the Board with such records, files, papers, data, or information as may be necessary to respond to any inquiry of the

Board under this title.

ø(2) Subject to existing law, information obtainable under paragraph (1) shall not be limited to final work products of the Secretary, but shall include drafts of such products and documentation

of work in progress.

øCOMPENSATION OF MEMBERS

øSEC. 505. (a) IN GENERAL.—Each member of the Board shall be

paid at the rate of pay payable for level III of the Executive Schedule for each day (including travel time) such member is engaged in

the work of the Board.

ø(b) TRAVEL EXPENSES.—Each member of the Board may receive

travel expenses, including per diem in lieu of subsistence, in the

same manner as is permitted under sections 5702 and 5703 of title

5, United States Code.

øSTAFF

øSEC. 506. (a) CLERICAL STAFF.—(1) Subject to paragraph (2), the

Chairman may appoint and fix the compensation of such clerical

staff as may be necessary to discharge the responsibilities of the

Board.

ø(2) Clerical staff shall be appointed subject to the provisions of

title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of

chapter 51 and subchapter III of chapter 53 of such title relating

to classification and General Schedule pay rates.

ø(b) PROFESSIONAL STAFF.—(1) Subject to paragraphs (2) and (3),

the Chairman may appoint and fix the compensation of such professional staff as may be necessary to discharge the responsibilities

of the Board.

ø(2) Not more than 10 professional staff members may be appointed under this subsection.
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ø(3) Professional staff members may be appointed without regard

to the provisions of title 5, United States Code, governing appointments in the competitive service, and may be paid without regard

to the provisions of chapter 51 and subchapter III of chapter 53 of

such title relating to classification and General Schedule pay rates,

except that no individual so appointed may receive pay in excess

of the annual rate of basic pay payable for GS–18 of the General

Schedule.

øSUPPORT SERVICES

øSEC. 507. (a) GENERAL SERVICES.—To the extent permitted by

law and requested by the Chairman, the Administrator of General

Services shall provide the Board with necessary administrative

services, facilities, and support on a reimbursable basis.

ø(b) ACCOUNTING, RESEARCH, AND TECHNOLOGY ASSESSMENT

SERVICES.—The Comptroller General, the Librarian of Congress,

and the Director of the Office of Technology Assessment shall, to

the extent permitted by law and subject to the availability of funds,

provide the Board with such facilities, support, funds and services,

including staff, as may be necessary for the effective performance

of the functions of the Board.

ø(c) ADDITIONAL SUPPORT.—Upon the request of the Chairman,

the Board may secure directly from the head of any department or

agency of the United States information necessary to enable it to

carry out this title.

ø(d) MAILS.—The Board may use the United States mails in the

same manner and under the same conditions as other departments

and agencies of the United States.

ø(e) EXPERTS AND CONSULTANTS.—Subject to such rules as may

be prescribed by the Board, the Chairman may procure temporary

and intermittent services under section 3109(b) of title 5 of the

United States Code, but at rates for individuals not to exceed the

daily equivalent of the maximum annual rate of basic pay payable

for GS–18 of the General Schedule.

øREPORT

øSEC. 508. The Board shall report not less than 2 times per year

to Congress and the Secretary its findings, conclusions, and recommendations. The first such report shall be submitted not later

than 12 months after the date of the enactment of the Nuclear

Waste Policy Amendments Act of 1987.

øAUTHORIZATION OF APPROPRIATIONS

øSEC. 509. Notwithstanding subsection (d) of section 302, and

subject to subsection (e) of such section, there are authorized to be

appropriated for expenditures from amounts in the Waste Fund established in subsection (c) of such section such sums as may be

necessary to carry out the provisions of this title.

øTERMINATION OF THE BOARD

øSEC. 510. The Board shall cease to exist not later than 1 year

after the date on which the Secretary begins disposal of high-level

radioactive waste or spent nuclear fuel in a repository.
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SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Nuclear Waste

Policy Act of 1997’’.

(b) TABLE OF CONTENTS.—

Sec. 1. Short title and table of contents.

Sec. 2. Definitions.

TITLE I—OBLIGATIONS

Sec. 101. Obligations of the Secretary of Energy.

TITLE II—INTEGRATED MANAGEMENT SYSTEM

Sec. 201. Intermodal Transfer.

Sec. 202. Transportation planning.

Sec. 203. Transportation requirements.

Sec. 204. Interim storage.

Sec. 205. Permanent repository.

Sec. 206. Land withdrawal.

TITLE III—LOCAL RELATIONS

Sec. 301. Financial Assistance.

Sec. 302. On-Site Representative.

Sec. 303. Acceptance of Benefits.

Sec. 304. Restrictions on Use of Funds.

Sec. 305. Land Conveyances.

TITLE IV—FUNDING AND ORGANIZATION

Sec. 401. Program Funding.

Sec. 402. Office of Civilian Radioactive Waste Management.

Sec. 403. Federal contribution.

TITLE V—GENERAL AND MISCELLANEOUS PROVISIONS

Sec. 501. Compliance with other laws.

Sec. 502. Judicial review of agency actions.

Sec. 503. Licensing of facility expansions and transshipments.

Sec. 504. Siting a second repository.

Sec. 505. Financial arrangements for low-level radioactive waste site closure.

Sec. 506. Nuclear Regulatory Commission training authority.

Sec. 507. Emplacement schedule.

Sec. 508. Transfer of Title.

Sec. 509. Decommissioning Pilot Program.

Sec. 510. Water Rights.

TITLE VI—NUCLEAR WASTE TECHNICAL REVIEW BOARD

Sec. 601. Definitions.

Sec. 602. Nuclear Waste Technical Review Board.

Sec. 603. Functions.

Sec. 604. Investigatory powers.

Sec. 605. Compensation of members.

Sec. 606. Staff.

Sec. 607. Support services.

Sec. 608. Report.

Sec. 609. Authorization of appropriations.

Sec. 610. Termination of the board.

TITLE VII—MANAGEMENT REFORM

Sec. 701. Management reform initiatives.

Sec. 702. Reporting.

Sec. 703. Effective date.

SEC. 2. DEFINITIONS.

For purposes of this Act:

(1) ACCEPT, ACCEPTANCE.—The terms ‘‘accept’’ and ‘‘acceptance’’ mean the Secretary’s act of taking possession of spent nuclear fuel or high-level radioactive waste.
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(2) AFFECTED INDIAN TRIBE.—The term ‘‘affected Indian tribe’’

means any Indian tribe—

(A) whose reservation is surrounded by or borders an affected unit of local government, or

(B) whose federally defined possessory or usage rights to

other lands outside of the reservation’s boundaries arising

out of congressionally ratified treaties may be substantially

and adversely affected by the locating of an interim storage

facility or a repository if the Secretary of the Interior finds,

upon the petition of the appropriate governmental officials

of the tribe, that such effects are both substantial and adverse to the tribe.

(3) AFFECTED UNIT OF LOCAL GOVERNMENT.—The term ‘‘affected unit of local government’’ means the unit of local government with jurisdiction over the site of a repository or interim

storage facility. Such term may, at the discretion of the Secretary, include other units of local government that are contiguous with such unit.

(4) ATOMIC ENERGY DEFENSE ACTIVITY.—The term ‘‘atomic energy defense activity’’ means any activity of the Secretary performed in whole or in part in carrying out any of the following

functions:

(A) Naval reactors development.

(B) Weapons activities including defense inertial confinement fusion.

(C) Verification and control technology.

(D) Defense nuclear materials production.

(E) Defense nuclear waste and materials byproducts

management.

(F) Defense nuclear materials security and safeguards

and security investigations.

(G) Defense research and development.

(5) CIVILIAN NUCLEAR POWER REACTOR.—The term ‘‘civilian

nuclear power reactor’’ means a civilian nuclear power plant required to be licensed under section 103 or 104 b. of the Atomic

Energy Act of 1954 (42 U.S.C. 2133, 2134(b)).

(6) COMMISSION.—The term ‘‘Commission’’ means the Nuclear

Regulatory Commission.

(7) CONTRACTS.—The term ‘‘contracts’’ means the contracts,

executed prior to the date of enactment of the Nuclear Waste

Policy Act of 1997, under section 302(a) of the Nuclear Waste

Policy Act of 1982, by the Secretary and any person who generates or holds title to spent nuclear fuel or high-level radioactive waste of domestic origin for acceptance of such waste or

fuel by the Secretary and the payment of fees to offset the Secretary’s expenditures, and any subsequent contracts executed by

the Secretary pursuant to section 401(a) of this Act.

(8) CONTRACT HOLDERS.—The term ‘‘contract holders’’ means

parties (other than the Secretary) to contracts.

(9) DEPARTMENT.—The term ‘‘Department’’ means the Department of Energy.

(10) DISPOSAL.—The term ‘‘disposal’’ means the emplacement

in a repository of spent nuclear fuel, high-level radioactive

waste, or other highly radioactive material with no foreseeable
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intent of recovery, whether or not such emplacement permits recovery of such material for any future purpose.

(11) DISPOSAL SYSTEM.—The term ‘‘disposal system’’ means

all natural barriers and engineered barriers, and engineered

systems and components, that prevent the release of radionuclides from the repository.

(12) EMPLACEMENT SCHEDULE.—The term ‘‘emplacement

schedule’’ means the schedule established by the Secretary in

accordance with section 507(a) for emplacement of spent nuclear fuel and high-level radioactive waste at the interim storage facility.

(13) ENGINEERED BARRIERS AND ENGINEERED SYSTEMS AND

COMPONENTS.—The terms ‘‘engineered barriers’’ and ‘‘engineered systems and components,’’ mean man-made components

of a disposal system. These terms include the spent nuclear fuel

or high-level radioactive waste form, spent nuclear fuel package

or high-level radioactive waste package, and other materials

placed over and around such packages.

(14) HIGH-LEVEL RADIOACTIVE WASTE.—The term ‘‘high-level

radioactive waste’’ means—

(A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products

in sufficient concentrations; and

(B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation, which includes any low-level

radioactive waste with concentrations of radionuclides that

exceed the limits established by the Commission for class C

radioactive waste, as defined by section 61.55 of title 10,

Code of Federal Regulations, as in effect on January 26,

1983.

(15) FEDERAL AGENCY.—The term ‘‘Federal agency’’ means

any Executive agency, as defined in section 105 of title 5, United States Code.

(16) INDIAN TRIBE.—The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided

to Indians by the Secretary of the Interior because of their status as Indians including any Alaska Native village, as defined

in section 3(c) of the Alaska Native Claims Settlement Act (43

U.S.C. 1602(c)).

(17) INTEGRATED MANAGEMENT SYSTEM.—The term ‘‘integrated management system’’ means the system developed by the

Secretary for the acceptance, transportation, storage, and disposal of spent nuclear fuel and high-level radioactive waste

under title II of this Act.

(18) INTERIM STORAGE FACILITY.—The term ‘‘interim storage

facility’’ means a facility designed and constructed for the receipt, handling, possession, safeguarding, and storage of spent

nuclear fuel and high-level radioactive waste in accordance

with title II of this Act.
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(19) INTERIM STORAGE FACILITY SITE.—The term ‘‘interim

storage facility site’’ means the specific site within Area 25 of

the Nevada Test Site that is designated by the Secretary and

withdrawn and reserved in accordance with this Act for the location of the interim storage facility.

(20) LOW-LEVEL RADIOACTIVE WASTE.—The term ‘‘low-level radioactive waste’’ means radioactive material that—

(A) is not spent nuclear fuel, high-level radioactive waste,

transuranic waste, or byproduct material as defined in section 11e(2) of the Atomic Energy Act of 1954 (42 U.S.C.

2014(e)(2)); and

(B) the Commission, consistent with existing law, classifies as low-level radioactive waste.

(21) METRIC TONS URANIUM.—The terms ‘‘metric tons uranium’’ and ‘‘MTU’’ means the amount of uranium in the original unirradiated fuel element whether or not the spent nuclear

fuel has been reprocessed.

(22) NUCLEAR WASTE FUND.—The terms ‘‘Nuclear Waste

Fund’’ and ‘‘waste fund’’ mean the nuclear waste fund established in the United States Treasury prior to the date of enactment of this Act under section 302(c) of the Nuclear Waste Policy Act of 1982.

(23) OFFICE.—The term ‘‘Office’’ means the Office of Civilian

Radioactive Waste Management established within the Department prior to the date of enactment of this Act under the provisions of the Nuclear Waste Policy Act of 1982.

(24) PROGRAM APPROACH.—The term ‘‘program approach’’

means the Civilian Radioactive Waste Management Program

Plan, dated May 6, 1996, as modified by this Act, and as

amended from time to time by the Secretary in accordance with

this Act.

(25) REPOSITORY.—The term ‘‘repository’’ means a system designed and constructed under title II of this Act for the geologic

disposal of spent nuclear fuel and high-level radioactive waste,

including both surface and subsurface areas at which spent nuclear fuel and high-level radioactive waste receipt, handling,

possession, safeguarding, and storage are conducted.

(26) SECRETARY.—The term ‘‘Secretary’’ means the Secretary

of Energy.

(27) SITE CHARACTERIZATION.—The term ‘‘site characterization’’ means activities, whether in a laboratory or in the field,

undertaken to establish the geologic condition and the ranges of

the parameters of a candidate site relevant to the location of a

repository, including borings, surface excavations, excavations

of exploratory facilities, limited subsurface lateral excavations

and borings, and in situ testing needed to evaluate the

licensability of a candidate site for the location of a repository,

but not including preliminary borings and geophysical testing

needed to assess whether site characterization should be undertaken.

(28) SPENT NUCLEAR FUEL.—The term ‘‘spent nuclear fuel’’

means fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not

been separated by reprocessing.
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(29) STORAGE.—The term ‘‘storage’’ means retention of spent

nuclear fuel or high-level radioactive waste with the intent to

recover such waste or fuel for subsequent use, processing, or disposal.

(30) WITHDRAWAL.—The term ‘‘withdrawal’’ has the same definition as that set forth in section 103(j) of the Federal Land

Policy and Management Act of 1976 (43 U.S.C. 1702(j)).

(31) YUCCA MOUNTAIN SITE.—The term ‘‘Yucca Mountain site’’

means the area in the State of Nevada that is withdrawn and

reserved in accordance with this Act for the location of a repository.

TITLE I—OBLIGATIONS

SEC. 101. OBLIGATIONS OF THE SECRETARY OF ENERGY.

(a) DISPOSAL.—The Secretary shall develop and operate an integrated management system for the storage and permanent disposal

of spent nuclear fuel and high-level radioactive waste.

(b) INTERIM STORAGE.—The Secretary shall store spent nuclear

fuel and high-level radioactive waste from facilities designated by

contract holders at an interim storage facility pursuant to section

204 in accordance with the emplacement schedule, beginning not

later than November 30, 1999.

(c) TRANSPORTATION.—The Secretary shall provide for the transportation of spent nuclear fuel and high-level radioactive waste accepted by the Secretary. The Secretary shall procure all systems and

components necessary to transport spent nuclear fuel and high-level

radioactive waste from facilities designated by contract holders to

and among facilities comprising the Integrated Management System. Consistent with the Buy American Act (41 U.S.C. 10a–10c), unless the Secretary shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, all such systems and

components procured by the Secretary shall be manufactured in the

United States, with the exception of any transportable storage systems purchased by contract holders prior to the effective date of the

Nuclear Waste Policy Act of 1997 and procured by the Secretary

from such contract holders for use in the integrated management

system.

(d) INTEGRATED MANAGEMENT SYSTEM.—The Secretary shall expeditiously pursue the development of each component of the integrated management system, and in so doing shall seek to utilize effective private sector management and contracting practices.

(e) PRIVATE SECTOR PARTICIPATION.—In administering the Integrated Management System, the Secretary shall, to the maximum

extent possible, utilize, employ, procure and contract with, the private sector to fulfill the Secretary’s obligations and requirements

under this Act.

(f) PREEXISTING RIGHTS.—Nothing in this Act is intended to or

shall be construed to modify—

(1) any right of a contract holder under section 302(a) of the

Nuclear Waste Policy Act of 1982, or under a contract executed

prior to the date of enactment of this Act under that section; or

(2) obligations imposed upon the Federal Government by the

United States District Court of Idaho in an order entered on
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October 17, 1995 in United States v. Batt (No. 91–0054–S–

EJL).

(g) LIABILITY.—Subject to subsection (f), nothing in this Act shall

be construed to subject the United States to financial liability for

the Secretary’s failure to meet any deadline for the acceptance or

emplacement of spent nuclear fuel or high-level radioactive waste

for storage or disposal under this Act.

TITLE II—INTEGRATED MANAGEMENT SYSTEM

SEC. 201. INTERMODAL TRANSFER.

(a) ACCESS.—The Secretary shall utilize heavy-haul truck transport to move spent nuclear fuel and high-level radioactive waste

from the mainline rail line at Caliente, Nevada, to the interim storage facility site.

(b) CAPABILITY DATE.—The Secretary shall develop the capability

to commence rail to truck intermodal transfer at Caliente, Nevada,

no later than November 30, 1999. Intermodal transfer and related

activities are incidental to the interstate transportation of spent nuclear fuel and high-level radioactive waste.

(c) ACQUISITIONS.—The Secretary shall acquire lands and rightsof-way necessary to commence intermodal transfer at Caliente, Nevada.

(d) REPLACEMENTS.—The Secretary shall acquire and develop on

behalf of, and dedicate to, the City of Caliente, Nevada, parcels of

land and right-of-way within Lincoln County, Nevada, as required

to facilitate replacement of land and city wastewater disposal facilities necessary to commence intermodal transfer pursuant to this Act.

Replacement of land and city wastewater disposal activities shall

occur no later than November 30, 1999.

(e) NOTICE AND MAP.—Within 6 months of the date of enactment

of the Nuclear Waste Policy Act of 1997, the Secretary shall—

(1) publish in the Federal Register a notice containing a legal

description of the sites and rights-of-way to be acquired under

this subsection; and

(2) file copies of a map of such sites and rights-of-way with

the Congress, the Secretary of the Interior, the State of Nevada,

the Archivist of the United States, the Board of Lincoln County

Commissioners, the Board of Nye County Commissioners, and

the Caliente City Council.

Such map and legal description shall have the same force and effect

as if they were included in this Act. The Secretary may correct clerical and typographical errors and legal descriptions and make minor

adjustments in the boundaries.

(f) IMPROVEMENTS.—The Secretary shall make improvements to

existing roadways selected for heavy-haul truck transport between

Caliente, Nevada, and the interim storage facility site as necessary

to facilitate year-round safe transport of spent nuclear fuel and

high-level radioactive waste.

(g) LOCAL GOVERNMENT INVOLVEMENT.—The Commission shall

enter into a Memorandum of Understanding with the City of

Caliente and Lincoln County, Nevada, to provide advice to the Commission regarding intermodal transfer and to facilitate on-site representation. Reasonable expenses of such representation shall be

paid by the Secretary.
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(h) BENEFITS AGREEMENT.— (1) IN GENERAL.—The Secretary shall offer to enter into an

agreement with the City of Caliente and Lincoln County, Nevada concerning the integrated management system.

(2) AGREEMENT CONTENT.—Any agreement shall contain such

terms and conditions, including such financial and institutional arrangements, as the Secretary and agreement entity determine to be reasonable and appropriate and shall contain

such provisions as are necessary to preserve any right to participation or compensation of the City of Caliente and Lincoln

County, Nevada.

(3) AMENDMENT.—An agreement entered into under this subsection may be amended only with the mutual consent of the

parties to the amendment and terminated only in accordance

with paragraph (4).

(4) TERMINATION.—The Secretary shall terminate the agreement under this subsection if any major element of the integrated management system may not be completed.

(5) LIMITATION.—Only 1 agreement may be in effect at any

one time.

(6) JUDICIAL REVIEW.—Decisions of the Secretary under this

section are not subject to judicial review.

(i) CONTENT OF AGREEMENT.— (1) SCHEDULE.—In addition to the benefits to which the City

of Caliente and Lincoln County are entitled to under this title,

the Secretary shall make payments under the benefits agreement in accordance with the following schedule:

BENEFITS SCHEDULE

(amounts in millions)

Event Payment

(A) Annual payments prior to first receipt of spent fuel 2.5

(B) Annual payments beginning upon first spent fuel receipt ................................................................................. 5

(C) Payment upon closure of the intermodal transfer facility ................................................................................ 5

(2) DEFINITIONS.—For purposes of this section, the term—

(A) ‘‘spent fuel’’ means high-level radioactive waste or

spent nuclear fuel; and

(B) ‘‘first spent fuel receipt’’ does not include receipt of

spent fuel or high-level radioactive waste for purposes of

testing or operational demonstration.

(3) ANNUAL PAYMENTS.—Annual payments prior to first spent

fuel receipt under paragraph (1)(A) shall be made on the date

of execution of the benefits agreement and thereafter on the anniversary date of such execution. Annual payments after the

first spent fuel receipt until closure of the facility under paragraph (1)(C) shall be made on the anniversary date of such first

spent fuel receipt.

(4) REDUCTION.—If the first spent fuel payment under paragraph (1)(B) is made within 6 months after the last annual
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payment prior to the receipt of spent fuel under paragraph

(1)(A), such first spent fuel payment under paragraph (1)(B)

shall be reduced by an amount equal to 1⁄12 of such annual payment under paragraph (1)(A) for each full month less than 6

that has not elapsed since the last annual payment under paragraph (1)(A).

(5) RESTRICTIONS.—The Secretary may not restrict the purposes for which the payments under this section may be used.

(6) DISPUTE.—In the event of a dispute concerning such

agreement, the Secretary shall resolve such dispute, consistent

with this Act and applicable State law.

(7) CONSTRUCTION.—The signature of the Secretary on a

valid benefits agreement under this section shall constitute a

commitment by the United States to make payments in accordance with such agreement under section 401(c)(2).

(j) INITIAL LAND CONVEYANCES.

(1) CONVEYANCES OF PUBLIC LANDS.—One hundred and twenty days after enactment of this Act, all right, title and interest

of the United States in the property described in paragraph (2),

and improvements thereon, together with all necessary easements for utilities and ingress and egress to such property, including, but not limited to, the right to improve those easements, are conveyed by operation of law to the County of Lincoln, Nevada, unless the county notifies the Secretary of Interior

or the head of such other appropriate agency in writing within

60 days of such date of enactment that it elects not to take title

to all or any part of the property, except that any lands conveyed to the County of Lincoln under this subsection that are

subject to a Federal grazing permit or lease or a similar federally granted permit or lease shall be conveyed between 60 and

120 days of the earliest time the Federal agency administering

or granting the permit or lease would be able to legally terminate such right under the statutes and regulations existing at

the date of enactment of this Act, unless Lincoln County and the

affected holder of the permit or lease negotiate an agreement

that allows for an earlier conveyance.

(2) SPECIAL CONVEYANCES.—Notwithstanding any other law,

the following public lands depicted on the maps and legal descriptions dated October 11, 1995, shall be conveyed under

paragraph (1) to the County of Lincoln, Nevada:

Map 10: Lincoln County, Parcel M, Industrial Park Site

Map 11: Lincoln County, Parcel F, Mixed Use Industrial

Site

Map 13: Lincoln County, Parcel J, Mixed Use, Alamo

Community Expansion Area

Map 14: Lincoln County, Parcel E, Mixed Use, Pioche

Community Expansion Area

Map 15: Lincoln County, Parcel B, Landfill Expansion

Site.

(3) CONSTRUCTION.—The maps and legal descriptions of special conveyances referred to in paragraph (2) shall have the

same force and effect as if they were included in this Act. The

Secretary may correct clerical and typographical errors in the
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maps and legal descriptions and make minor adjustments in

the boundaries of the sites.

(4) EVIDENCE OF TITLE TRANSFER.—Upon the request of the

County of Lincoln, Nevada, the Secretary of the Interior shall

provide evidence of title transfer.

SEC. 202. TRANSPORTATION PLANNING.

(a) TRANSPORTATION READINESS.—The Secretary—

(1) shall take such actions as are necessary and appropriate

to ensure that the Secretary is able to transport safely spent nuclear fuel and high-level radioactive waste from sites designated

by the contract holders to mainline transportation facilities and

from the mainline transportation facilities to the interim storage facility or repository, using routes that minimize, to the

maximum practicable extent consistent with Federal requirements governing transportation of hazardous materials, transportation of spent nuclear fuel and high-level radioactive waste

through populated areas, beginning not later than November

30, 1999; and

(2) not later than November 30, 1999, shall, in consultation

with the Secretary of Transportation and affected States and

tribes, develop and implement a comprehensive management

plan that ensures that safe transportation of spent nuclear fuel

and high-level radioactive waste from the sites designated by

the contract holders to the interim storage facility site beginning

not later than that date.

(b) TRANSPORTATION PLANNING.—

(1) IN GENERAL.—In conjunction with the development of the

logistical plan in accordance with subsection (a), the Secretary

shall update and modify, as necessary, the Secretary’s transportation institutional plans to ensure that institutional issues are

addressed and resolved on a schedule to support the commencement of transportation of spent nuclear fuel and high-level radioactive waste to the interim storage facility not later than November 30, 1999.

(2) MATTERS TO BE ADDRESSED.—Among other things, planning under paragraph (1) shall provide a schedule and process

for addressing and implementing, as necessary—

(A) transportation routing plans;

(B) transportation contracting plans;

(C) transportation training in accordance with section

203;

(D) public education regarding transportation of spent

nuclear fuel and high level radioactive waste; and

(E) transportation tracking programs.

(c) SHIPPING CAMPAIGN TRANSPORTATION PLANS.—

(1) IN GENERAL.—The Secretary shall develop a transportation plan for the implementation of each shipping campaign

(as that term is defined by the Secretary) from each site at

which high-level nuclear waste is stored, in accordance with the

requirements stated in Department of Energy Order No. 460.2

and the Program Manager’s Guide.

(2) REQUIREMENTS.—A shipping campaign transportation

plan shall—
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(A) be fully integrated with State, and tribal government

notification, inspection, and emergency response plans

along the preferred shipping route or State-designated alternative route identified under subsection (d); and

(B) be consistent with the principles and procedures developed for the safe transportation of transuranic waste to

the Waste Isolation Pilot Plant (unless the Secretary demonstrates that a specific principle or procedure is inconsistent with a provision of this Act).

(d) SAFE SHIPPING ROUTES AND MODES.—

(1) IN GENERAL.—The Secretary shall evaluate the relative

safety of the proposed shipping routes and shipping modes from

each shipping origin to the interim storage facility or repository

compared with the safety of alternative modes and routes.

(2) CONSIDERATIONS.—The evaluation under paragraph (1)

shall be conducted in a manner consistent with regulations promulgated by the Secretary of Transportation under authority of

chapter 51 of title 49, United States Code, and the Nuclear Regulatory Commission under authority of the Atomic Energy Act

of 1954 (42 U.S.C. 2011 et seq.), as applicable.

(3) DESIGNATION OF PREFERRED SHIPPING ROUTE AND

MODE.—Following the evaluation under paragraph (1), the Secretary shall designate preferred shipping routes and modes

from each civilian nuclear power reactor and Department of

Energy facility that stores spent nuclear fuel or other high-level

defense waste.

(4) SELECTION OF PRIMARY SHIPPING ROUTE.—If the Secretary

designates more than 1 preferred route under paragraph (3),

the Secretary shall select a primary route after considering, at

a minimum, historical accident rates, population, significant

hazards, shipping time, shipping distance, and mitigating

measures such as limits on the speed of shipments.

(5) USE OF PRIMARY SHIPPING ROUTE AND MODE.—Except in

cases of emergency, for all shipments conducted under this Act,

the Secretary shall cause the primary shipping route and mode

or State-designated alternative route under chapter 51 of title

49, United States Code, to be used. If a route is designated as

a primary route for any reactor or Department of Energy facility, the Secretary may use that route to transport spent nuclear

fuel or high-level radioactive waste from any other reactor or

Department of Energy facility.

(6) TRAINING AND TECHNICAL ASSISTANCE.—Following selection of the primary shipping routes, or State-designated alternative routes, the Secretary shall focus training and technical

assistance under section 203(c) on those routes.

(7) PREFERRED RAIL ROUTES.—

(A) REGULATION.—Not later than 1 year after the date of

enactment of the Nuclear Waste Policy Act of 1997, the Secretary of Transportation, pursuant to authority under other

provisions of law, shall promulgate a regulation establishing procedures for the selection of preferred routes for the

transportation of spent nuclear fuel and nuclear waste by

rail.
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(B) INTERIM PROVISION.—During the period beginning on

the date of enactment of the Nuclear Waste Policy Act of

1997 and ending on the date of issuance of a final regulation under subparagraph (A), rail transportation of spent

nuclear fuel and high-level radioactive waste shall be conducted in accordance with regulatory requirements in effect

on that date and with this section.

SEC. 203. TRANSPORTATION REQUIREMENTS.

(a) PACKAGE CERTIFICATION.—No spent nuclear fuel or high-level

radioactive waste may be transported by or for the Secretary under

this Act except in packages that have been certified for such purposes by the Commission.

(b) STATE NOTIFICATION.—The Secretary shall abide by regulations of the Commission regarding advance notification of State and

tribal governments prior to transportation of spent nuclear fuel or

high-level radioactive waste under this Act.

(c) TECHNICAL ASSISTANCE.— (1) IN GENERAL.— (A) STATES AND INDIAN TRIBES.—As provided in paragraph (3), the Secretary shall provide technical assistance

and funds to States and Indian tribes for training of public

safety officials of appropriate units of State, local, and tribal government. A State shall allocate to local governments

within the State a portion any funds that the Secretary provides to the State for technical assistance and funding.

(B) EMPLOYEE ORGANIZATIONS.—The Secretary shall provide technical assistance and funds for training directly to

nonprofit employee organizations and joint labor-management organizations that demonstrate experience in implementing and operating worker health and safety training

and education programs and demonstrate the ability to

reach and involve in training programs target populations

of workers who are or will be directly engaged in the transportation of spent nuclear fuel and high-level radioactive

waste, or emergency response or post-emergency response

with respect to such transportation.

(C) TRAINING.—Training under this section—

(i) shall cover procedures required for safe routine

transportation of materials and procedures for dealing

with emergency response situations;

(ii) shall be consistent with any training standards

established by the Secretary of Transportation under

subsection (g); and

(iii) shall include—

(I) a training program applicable to persons responsible for responding to emergency situations

occurring during the removal and transportation

of spent nuclear fuel and high-level radioactive

waste;

(II) instruction of public safety officers in procedures for the command and control of the response

to any incident involving the waste; and

(III) instruction of radiological protection and

emergency medical personnel in procedures for re-
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sponding to an incident involving spent nuclear

fuel or high-level radioactive waste being transported.

(2) NO SHIPMENTS IF NO TRAINING.—(A) There will be no

shipments of spent nuclear fuel and high-level radioactive waste

through the jurisdiction of any State or the reservation lands of

any Indian Tribe eligible for grants under paragraph (3)(B) unless technical assistance and funds to implement procedures for

safe routine transportation and for dealing with emergency response situations under paragraph (1)(A) have been available to

a State or Indian Tribe for at least two years prior to any shipment. Provided, however, the Secretary may ship spent nuclear

fuel and high-level radioactive waste if technical assistance of

funds have not been made available due to (1) an emergency,

including the sudden and unforeseen closure of a highway or

rail line or the sudden and unforeseen need to remove spent fuel

from a reactor because of an accident, or (2) the refusal to accept technical assistance by the State or Indian Tribe, or (3)

fraudulent actions which violate federal law governing the expenditure of federal funds.

(B) In the event the Secretary is required to transport spent

fuel or high level radioactive waste through a jurisdiction prior

to 2 years after the provision of technical assistance or funds to

such jurisdiction, the Secretary shall, prior to such shipment,

hold meetings in each state and Indian reservation through

which the shipping route passes in order to present initial shipment plans and receive comments. Department of Energy personnel trained in emergency response shall escort each shipment. Funds and all Department of Energy training resources

shall be made available to States and Indian Tribes along the

shipping route no later than three months prior to the commencement of shipments. Provided, however, that in no event

shall such shipments exceed 1,000 metric tons per year, and

provided further, that no such shipments shall be conducted

more than four years after the effective date of the Nuclear

Waste Policy Act of 1997.

(3) GRANTS.—

(A) IN GENERAL.—To implement this section, grants shall

be made under section 401(c)(2).

(B) GRANTS FOR DEVELOPMENT OF PLANS.—

(i) IN GENERAL.—The Secretary shall make a grant

of at least $150,000 to each State through the jurisdiction of which and each federally recognized Indian

tribe through the reservation lands of which a shipment of spent nuclear fuel or high-level radioactive

waste will be made under this Act for the purpose of

developing a plan to prepare for such shipments.

(ii) LIMITATION.—A grant shall be made under

clause (i) only to a State or a federally recognized Indian tribe that has the authority to respond to incidents involving shipments of hazardous material.

(C) GRANTS FOR IMPLEMENTATION OF PLANS.—

(i) IN GENERAL.—Annual implementation grants

shall be made to States and Indian tribes that have de-
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veloped a plan to prepare for shipments under this Act

under subparagraph (B). The Secretary, in submitting

annual departmental budget to Congress for funding of

implementation grants under this section, shall be

guided by the State and tribal plans developed under

subparagraph (B). As part of the Department of Energy’s annual budget request, the Secretary shall report

to Congress on—

(I) the funds requested by states and federally

recognized Indian tribes to implement this subsection;

(II) the amount requested by the President for

implementation; and

(III) the rationale for any discrepancies between

the amounts requested by States and federally recognized Indian tribes and the amounts requested

by the President.

(ii) ALLOCATION.—Of funds available for grants

under this subparagraph for any fiscal year—

(I) 25 percent shall be allocated by the Secretary

to ensure minimum funding and program capability levels in all States and Indian tribes based on

plans developed under subparagraph (B); and

(II) 75 percent shall be allocated to States and

Indian tribes in proportion to the number of shipment miles that are projected to be made in total

shipments under this Act through each jurisdiction.

(4) AVAILABILITY OF FUNDS FOR SHIPMENTS.—Funds under

paragraph (1) shall be provided for shipments to an interim

storage facility or repository, regardless of whether the interim

storage facility or repository is operated by a private entity or

by the Department of Energy.

(d) PUBLIC EDUCATION.—The Secretary shall conduct a program

to educate the public regarding the transportation of spent nuclear

fuel and high-level radioactive waste, with an emphasis upon those

States, units of local government, and Indian tribes through whose

jurisdiction the Secretary plans to transport substantial amounts of

spent nuclear fuel or high-level radioactive waste.

(e) COMPLIANCE WITH TRANSPORTATION REGULATIONS.—Any person that transports spent nuclear fuel or high-level radioactive

waste under the Nuclear Waste Policy Act of 1997, pursuant to a

contract with the Secretary, shall comply with all requirements governing such transportation issued by the Federal, State, and local

governments, and Indian tribes, in the same way and to the same

extent that any person engaging in that transportation that is in or

affects interstate commerce must comply with such requirements, as

required by 49 U.S.C. sec. 5126.

(f) EMPLOYEE PROTECTION.—Any person engaged in the interstate

commerce of spent nuclear fuel or high-level radioactive waste under

contract to the Secretary pursuant to this Act shall be subject to and

comply fully with the employee protection provisions of 49 U.S.C.

20109 and 49 U.S.C. 31105.
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(g) TRAINING STANDARD.—(1) No later than 12 months after the

date of enactment of the Nuclear Waste Policy Act of 1997, the Secretary of Transportation, pursuant to authority under other provisions of law, in consultation with the Secretary of Labor and the

Commission, shall promulgate a regulation establishing training

standards applicable to workers directly involved in the removal

and transportation of spent nuclear fuel and high-level radioactive

waste. The regulation shall specify minimum training standards

applicable to workers, including managerial personnel. The regulation shall require that the employer possess evidence of satisfaction

of the applicable training standard before any individual may be

employed in the removal and transportation of spent nuclear fuel

and high-level radioactive waste.

(2) If the Secretary of Transportation determines, in promulgating

the regulation required by subparagraph (1), that regulations promulgated by the Commission establish adequate training standards

for workers, then the Secretary of Transportation can refrain from

promulgating additional regulations with respect to worker training

in such activities. The Secretary of Transportation and the Commission shall work through their Memorandum of Understanding to

ensure coordination of worker training standards and to avoid duplicative regulation.

(3) The training standards required to be promulgated under subparagraph (1) shall, among other things deemed necessary and appropriate by the Secretary of Transportation, include the following

provisions—

(A) a specified minimum number of hours of initial offsite instruction and actual field experience under the direct supervision of a trained, experienced supervisor;

(B) a requirement that onsite managerial personnel receive

the same training as workers, and a minimum number of additional hours of specialized training pertinent to their managerial responsibilities; and

(C) a training program applicable to persons responsible for

responding to and cleaning up emergency situations occurring

during the removal and transportation of spent nuclear fuel

and high-level radioactive waste.

(4) There is authorized to be appropriated to the Secretary of

Transportation, from general revenues, such sums as may be necessary to perform his duties under this subsection.

SEC. 204. INTERIM STORAGE.

(a) AUTHORIZATION.—The Secretary shall design, construct, and

operate a facility for the interim storage of spent nuclear fuel and

high-level radioactive waste at the interim storage facility site. The

interim storage facility shall be subject to licensing pursuant to the

Atomic Energy Act of 1954 in accordance with the Commission’s

regulations governing the licensing of independent spent fuel storage

installations, which regulations shall be amended by the Commission as necessary to implement the provisions of this Act. The interim storage facility shall commence operation in phases in accordance with subsection (b).

(b) SCHEDULE.—(1) The Secretary shall proceed forthwith and

without further delay with all activities necessary to begin storing

spent nuclear fuel and high-level radioactive waste at the interim
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storage facility at the interim storage facility site by November 30,

1999, except that:

(A) The Secretary shall not begin any construction activities

at the interim storage facility site before December 31, 1998.

(B) The Secretary shall cease all activities (except necessary

termination activities) at the Yucca Mountain site if the President determines, in his discretion, on or before December 31,

1998, based on a preponderance of the information available at

such time, that the Yucca Mountain site is unsuitable for development as a repository, including geologic and engineered barriers, because of a substantial likelihood that a repository of

useful size cannot be designed, licensed, and constructed at the

Yucca Mountain site.

(C) No later than June 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—

(i) the preliminary design concept for the critical elements

of the repository and waste package,

(ii) a total system performance assessment, based upon

the design concept and the scientific data and analysis

available by June 30, 1998, describing the probable behavior of the repository in the Yucca Mountain geologic setting

relative to the overall system performance standard set

forth in section 205(d) of this Act,

(iii) a plan and cost estimate for the remaining work required to complete a license application, and

(iv) an estimate of the costs to construct and operate the

repository in accordance with the design concept.

(D) Within 18 months of a determination by the President

that the Yucca Mountain site is unsuitable for development as

a repository under subparagraph (B), the President shall designate a site for the construction of an interim storage facility.

The President shall not designate the Hanford Nuclear Reservation in the State of Washington as a site for construction of an

interim storage facility. If the President does not designate a

site for the construction of an interim storage facility, or the

construction of an interim storage facility at the designated site

is not approved by law within 24 months of the President’s determination that the Yucca Mountain site is not suitable for development as a repository, the Secretary shall begin construction of an interim storage facility at the interim storage facility

site as defined in section 2(19) of this Act. The interim storage

facility site as defined in section 2(19) of this Act shall be

deemed to be approved by law for purposes of this section.

(2) Upon the designation of an interim storage facility site by the

President under paragraph (1)(D), the Secretary shall proceed forthwith and without further delay with all activities necessary to begin

storing spent nuclear fuel and high-level radioactive waste at an interim storage facility at the designated site, except that the Secretary

shall not begin any construction activities at the designated interim

storage facility site before the designated interim storage facility site

is approved by law.

(c) DESIGN.—
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(1) The interim storage facility shall be designed in two

phases in order to commence operations no later than November

30, 1999. The design of the interim storage facility shall provide

for the use of storage technologies, licensed, approved, or certified by the Commission for use at the interim storage facility

as necessary to ensure compatibility between the interim storage

facility and contract holders’ spent nuclear fuel and facilities,

and to facilitate the Secretary’s ability to meet the Secretary’s

obligations under this Act.

(2) The Secretary shall consent to an amendment to the contracts to provide for reimbursement to contract holders for

transportable storage systems purchased by contract holders if

the Secretary determines that it is cost effective to use such

transportable storage systems as part of the integrated management system, provided that the Secretary shall not be required

to expend any funds to modify contract holders’ storage or

transport systems or to seek additional regulatory approvals in

order to use such systems.

(d) LICENSING.—

(1) PHASES.—The interim storage facility shall be licensed by

the Commission in two phases in order to commence operations

no later than November 30, 1999.

(2) FIRST PHASE.—No later than 12 months after the date of

enactment of the Nuclear Waste Policy Act of 1997, the Secretary shall submit to the Commission an application for a license for the first phase of the interim storage facility. The Environmental Report and Safety Analysis Report submitted in

support of such license application shall be consistent with the

scope of authority requested in the license application. The license issued for the first phase of the interim storage facility

shall have a term of 20 years. The interim storage facility licensed in the first phase shall have a capacity of not more than

15,000 MTU. The Commission shall issue a final decision

granting or denying the application for the first phase license

no later than 16 months from the date of the submittal of the

application for such license.

(3) SECOND PHASE.—No later than 30 months after the date

of enactment of the Nuclear Waste Policy Act of 1997, the Secretary shall submit to the Commission an application for a license for the second phase interim storage facility. The license

for the second phase facility shall authorize a storage capacity

of 40,000 MTU. If the Secretary does not submit the license application for construction of a respository by February 1, 2002,

or does not begin full spent nuclear fuel receipt operations at a

repository by January 17, 2010, the license shall authorize a

storage capacity of 60,000 MTU. The license application shall

be submitted such that the license can be issued to permit the

second phase facility to begin full spent nuclear fuel receipt operations no later than December 31, 2002. The license for the

second phase shall have an initial term of up to 100 years, and

shall be renewable for additional terms upon application of the

Secretary.

(e) ADDITIONAL AUTHORITY.—
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(1) CONSTRUCTION.—For purposes of complying with this section, the Secretary may commence site preparation for the interim storage facility as soon as practicable after the date of enactment of the Nuclear Waste Policy Act of 1997 and shall commence construction of each phase of the interim storage facility

subsequent to submittal of the license application for such

phase except that the Commission shall issue an order suspending such construction at any time if the Commission determines

that such construction poses an unreasonable risk to public

health and safety or the environment. The Commission shall

terminate all or part of such order upon a determination that

the Secretary has taken appropriate action to eliminate such

risk.

(2) FACILITY USE.—Notwithstanding any otherwise applicable

licensing requirement, the Secretary may utilize any facility

owned by the Federal Government on the date of enactment of

the Nuclear Waste Policy Act of 1997 within the boundaries of

the interim storage facility site, in connection with an imminent

and substantial endangerment to public health and safety at

the interim storage facility prior to commencement of operations

during the second phase.

(3) EMPLACEMENT OF FUEL AND WASTE.—Subject to paragraph (i), in each year in which the actual emplacement rate is

greater than the annual acceptance rate for spent nuclear fuel

from civilian nuclear power reactors established pursuant to the

contracts executed prior to the date of enactment of the Nuclear

Waste Policy Act of 1997, as set forth in the Secretary’s annual

capacity report dated March 1995 (DOE/RW–0457), the Secretary shall accept, in an amount not less than 25 percent of the

difference between the contractual acceptance rate and the actual emplacement rate for spent nuclear fuel from civilian nuclear power reactors established under section 507(a), the following radioactive materials:

(A) spent nuclear fuel or high-level radioactive waste of

domestic origin from civilian nuclear power reactors that

have permanently ceased operation on or before the date of

enactment of the Nuclear Waste Policy Act of 1997;

(B) spent nuclear fuel from foreign research reactors, as

necessary to promote nonproliferation objectives; and

(C) spent nuclear fuel, including spent nuclear fuel from

naval reactors, and high-level radioactive waste from atomic energy defense activities. Provided, however, that the Secretary shall accept not less than 5% of the total quantity of

spent fuel accepted in any one year from the categories of

radioactive materials described in subparagraphs (B), and

(C).

(f) NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.—

(1) PRELIMINARY DECISIONMAKING ACTIVITIES.—The Secretary’s and President’s activities under this section, including,

but not limited to, the selection of a site for the interim storage

facility, assessments, determinations and designations made

under section 204(b), the preparation and submittal of a license

application and supporting documentation, the construction of

a facility under paragraph (e)(1) of this section, and facility use
139

pursuant to paragraph (e)(2) of this section shall be considered

preliminary decisionmaking activities for purposes of judicial

review. The Secretary shall not prepare 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 any environmental review under subparagraph (E) or (F) of such Act before conducting these activities.

(2) ENVIRONMENTAL IMPACT STATEMENT.— (A) FINAL DECISION.—A final decision by the Commission

to grant or deny a license application for the first or second

phase of the interim storage facility shall be accompanied

by an Environmental Impact Statement prepared under

section 102(2)(C) of the National Environmental Policy Act

of 1969 (42 U.S.C. 4332(2)(C)). In preparing such Environmental Impact Statement, the Commission—

(i) shall ensure that the scope of the Environmental

Impact Statement is consistent with the scope of the licensing action; and

(ii) shall analyze the impacts of the transportation of

spent nuclear fuel and high-level radioactive waste to

the interim storage facility in a generic manner.

(B) CONSIDERATIONS.—Such Environmental Impact

Statement shall not consider—

(i) the need for the interim storage facility, including

any individual component thereof;

(ii) the time of the initial availability of the interim

storage facility;

(iii) any alternatives to the storage of spent nuclear

fuel and high-level radioactive waste at the interim

storage facility;

(iv) any alternatives to the site of the facility as designated by the Secretary in accordance with subsection

(a);

(v) any alternatives to the design criteria for such facility or any individual component thereof, as specified

by the Secretary in the license application; or

(vi) the environmental impacts of the storage of spent

nuclear fuel and high-level radioactive waste at the interim storage facility beyond the initial term of the license or the term of the renewal period for which a license renewal application is made.

(g) JUDICIAL REVIEW.—Judicial review of the Commission’s environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall be consolidated with

judicial review of the Commission’s licensing decision. No court

shall have jurisdiction to enjoin the construction or operation of the

interim storage facility prior to its final decision on review of the

Commission’s licensing action.

(h) WASTE CONFIDENCE.—The Secretary’s obligation to construct

and operate the interim storage facility in accordance with this section and the Secretary’s obligation to develop an integrated management system in accordance with the provisions of this Act, shall provide sufficient and independent grounds for any further findings by

the Commission of reasonable assurance that spent nuclear fuel and
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high-level radioactive waste will be disposed of safely and on a

timely basis for purposes of the Commission’s decision to grant or

amend any license to operate any civilian nuclear power reactor

under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

(i) STORAGE OF OTHER SPENT NUCLEAR FUEL AND HIGH-LEVEL

RADIOACTIVE WASTE.—No later than 18 months following the date

of enactment of the Nuclear Waste Policy Act of 1997, the Commission shall, by rule, establish criteria for the storage in the interim

storage facility of fuel and waste listed in subsection (e)(3) (A)

through (C), to the extent such criteria are not included in regulations issued by the Commission and existing on the date of enactment of the Nuclear Waste Policy Act of 1997. Following establishment of such criteria, the Secretary shall seek authority, as necessary, to store fuel and waste listed in subsection (e)(3) (A) through

(C) at the interim storage facility. None of the activities carried out

pursuant to this subsection shall delay, or otherwise affect, the development, construction, licensing, or operation of the interim storage facility.

(j) SAVINGS CLAUSE.—The Commission shall, by rule, establish

procedures for the licensing of any technology for the dry storage of

spent nuclear fuel by rule and without, to the maximum extent possible, the need for site-specific approvals by the Commission. Nothing in this Act shall affect any such procedures, or any licenses or

approvals issued pursuant to such procedures in effect on the date

of enactment.

SEC. 205. PERMANENT REPOSITORY.

(a) REPOSITORY CHARACTERIZATION.— (1) GUIDELINES.—The guidelines promulgated by the Secretary and published at 10 CFR part 960 are annulled and revoked and the Secretary shall make no assumptions or conclusions about the licensability of the Yucca Mountain site as a repository by reference to such guidelines.

(2) SITE CHARACTERIZATION ACTIVITIES.—The Secretary shall

carry out appropriate site characterization activities at the

Yucca Mountain site in accordance with the Secretary’s program approach to site characterization. The Secretary shall

modify or eliminate those site characterization activities designed only to demonstrate the suitability of the site under the

guidelines referenced in paragraph (1).

(3) SCHEDULE DATE.—Consistent with the schedule set forth

in the program approach, as modified to be consistent with the

Nuclear Waste Policy Act of 1997, no later than February 1,

2002, the Secretary shall apply to the Commission for authorization to construct a repository. If, at any time prior to the filing of such application, the Secretary determines that the Yucca

Mountain site cannot satisfy the Commission’s regulations applicable to the licensing of a geologic repository, the Secretary

shall terminate site characterization activities at the site, notify

Congress and the State of Nevada of the Secretary’s determination and the reasons therefor, and recommend to Congress not

later than 6 months after such determination furthers actions,

including the enactment of legislation, that may be needed to

manage the Nation’s spent nuclear fuel and high-level radioactive waste.
141

(4) MAXIMIZING CAPACITY.—In developing an application for

authorization to construct the repository, the Secretary shall

seek to maximize the capacity of the repository, in the most costeffective manner, consistent with the need for disposal capacity.

(b) REPOSITORY LICENSING.—Upon the completion of any licensing proceeding for the first phase of the interim storage facility, the

Commission shall amend its regulations governing the disposal of

spent nuclear fuel and high-level radioactive waste in geologic repositories to the extent necessary to comply with this Act. Subject to

subsection (c), such regulations shall provide for the licensing of the

repository according to the following procedures:

(1) CONSTRUCTION AUTHORIZATION.—The Commission shall

grant the Secretary a construction authorization for the repository upon determining that there is reasonable assurance that

spent nuclear fuel and high-level radioactive waste can be disposed of in the repository—

(A) in conformity with the Secretary’s application, the

provisions of this Act, and the regulations of the Commission;

(B) without unreasonable risk to the health and safety of

the public; and

(C) consistent with the common defense and security.

(2) LICENSE.—Following substantial completion of construction and the filing of any additional information needed to complete the license application, the Commission shall issue a license to dispose of spent nuclear fuel and high-level radioactive

waste in the repository if the Commission determines that the

repository has been constructed and will operate—

(A) in conformity with the Secretary’s application, the

provisions of this Act, and the regulations of the Commission;

(B) without unreasonable risk to the health and safety of

the public; and

(C) consistent with the common defense and security.

(3) CLOSURE.—After emplacing spent nuclear fuel and highlevel radioactive waste in the repository and collecting sufficient

confirmatory data on repository performance to reasonably confirm the basis for repository closure consistent with the Commission’s regulations applicable to the licensing of a repository,

as modified in accordance with this Act, the Secretary shall

apply to the Commission to amend the license to permit permanent closure of the repository. The Commission shall grant such

license amendment upon finding that there is reasonable assurance that the repository can be permanently closed—

(A) in conformity with the Secretary’s application to

amend the license, the provisions of this Act, and the regulations of the Commission;

(B) without unreasonable risk to the health and safety of

the public; and

(C) consistent with the common defense and security.

(4) POST-CLOSURE.—The Secretary shall take those actions

necessary and appropriate at the Yucca Mountain site to prevent any activity at the site subsequent to repository closure that

poses an unreasonable risk of—
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(A) breaching the repository’s engineered or geologic barriers; or

(B) increasing the exposure of individual members of the

public to radiation beyond the release standard established

in subsection (d)(1).

(c) MODIFICATION OF REPOSITORY LICENSING PROCEDURE.—The

Commission’s regulations shall provide for the modification of the

repository licensing procedure, as appropriate, in the event that the

Secretary seeks a license to permit the emplacement in the repository, on a retrievable basis, of spent nuclear fuel or high-level radioactive waste as is necessary to provide the Secretary with sufficient

confirmatory data on repository performance to reasonably confirm

the basis for repository closure consistent with applicable regulations.

(d) REPOSITORY LICENSING STANDARDS.—The Administrator of

the Environmental Protection Agency shall, pursuant to authority

under others provisions of law, issue generally applicable standards

for the protection of the public from releases of radioactive materials

or radioactivity from the repository. Such standards shall be consistent with the overall system performance standard established by

this subsection unless the Administrator determines by rule that the

overall system performance standard would constitute an unreasonable risk to health and safety. The Commission’s repository licensing determinations for the protection of the public shall be based

solely on a finding whether the repository can be operated in conformance with the overall system performance standard established

in paragraph (1), applied in accordance with the provisions of paragraph (2), and the Administrator’s radiation protection standards.

The Commission shall amend its regulations in accordance with

subsection (b) to incorporate each of the following licensing standards:

(1) ESTABLISHMENT OF OVERALL SYSTEM PERFORMANCE

STANDARD.—The standard for protection of the public from release of radioactive material or radioactivity from the repository

shall prohibit releases that would expose an average member of

the general population in the vicinity of the Yucca Mountain

site to an annual dose in excess of 100 millirems unless the

Commission determines by rule that such standard would constitute an unreasonable risk to health and safety and establishes by rule another standard which will protect health and

safety. Such standard shall constitute an overall system performance standard.

(2) APPLICATION OF OVERALL SYSTEM PERFORMANCE STANDARD.—The Commission shall issue the license if it finds reasonable assurance that for the first 1,000 years following the commencement of repository operations, the overall system performance standard will be met based on a probabilistic evaluation,

as appropriate, of compliance with the overall system performance standard in paragraph (1).

(3) FACTORS.—For purposes of making the finding in paragraph (2)—

(A) the Commission shall not consider catastrophic events

where the health consequences of individual events themselves can be reasonably assumed to exceed the health con-
143

sequences due to the impact of the events on repository performance;

(B) for the purpose of this section, an average member of

the general population in the vicinity of the Yucca Mountain site means a person whose physiology, age, general

health, agricultural practices, eating habits, and social behavior represent the average for persons living in the vicinity of the site. Extremes in social behavior, eating habits, or

other relevant practices or characteristics shall not be considered; and

(C) the Commission shall assume that, following repository closure, the inclusion of engineered barriers and the

Secretary’s post-closure actions at the Yucca Mountain site,

in accordance with subsection (b)(4), shall be sufficient to—

(i) prevent any human activity at the site that poses

an unreasonable risk of breaching the repository’s engineered or geologic barriers; and

(ii) prevent any increase in the exposure of individual

members of the public to radiation beyond the allowable limits specified in paragraph (1).

(4) ADDITIONAL ANALYSIS.—The Commission shall analyze

the overall system performance through the use of probabilistic

evaluations that use best estimate assumptions, data, and

methods for the period commencing after the first 1,000 years

of operation of the repository and terminating at 10,000 years

after the commencement of operation of the repository.

(e) NATIONAL ENVIRONMENTAL POLICY ACT.— (1) SUBMISSION OF STATEMENT.—Construction and operation

of the repository 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.). The Secretary shall submit an environmental impact statement on the construction and operation of

the repository to the Commission with the license application

and shall supplement such environmental impact statement as

appropriate.

(2) CONSIDERATIONS.—For purposes of complying with the requirements of the National Environmental Policy Act of 1969

and this section, the Secretary shall not consider in the environmental impact statement the need for the repository, or alternative sites or designs for the repository.

(3) ADOPTION BY COMMISSION.—The Secretary’s environmental impact statement and any supplements thereto shall, to

the extent practicable, be adopted by the Commission in connection with the issuance by the Commission of a construction authorization under subsection (b)(1), a license under subsection

(b)(2), or a license amendment under subsection (b)(3). To the

extent such statement or supplement 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, 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.
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In any such statement or supplement prepared with respect to

the repository, the Commission shall not consider the need for

a repository, or alternate sites or designs for the repository.

(f) JUDICIAL REVIEW.—No court shall have jurisdiction to enjoin

issuance of the Commission repository licensing regulations prior to

its final decision on review of such regulations.

SEC. 206. LAND WITHDRAWAL.

(a) WITHDRAWAL AND RESERVATION.— (1) WITHDRAWAL.—Subject to valid existing rights, the interim storage facility site and the Yucca Mountain site, as described in subsection (b), are withdrawn from all forms of entry,

appropriation, and disposal under the public land laws, including the mineral leasing laws, the geothermal leasing laws, the

material sale laws, and the mining laws.

(2) JURISDICTION.—Jurisdiction of any land within the interim storage facility site and the Yucca Mountain site managed by the Secretary of the Interior or any other Federal officer

is transferred to the Secretary.

(3) RESERVATION.—The interim storage facility site and the

Yucca Mountain site are reserved for the use of the Secretary for

the construction and operation, respectively, of the interim storage facility and the repository and activities associated with the

purposes of this title.

(b) LAND DESCRIPTION.— (1) BOUNDARIES.—The boundaries depicted on the map entitled ‘‘Interim Storage Facility Site Withdrawal Map,’’ dated

March 13, 1996, and on file with the Secretary, are established

as the boundaries of the Interim Storage Facility site.

(2) BOUNDARIES.—The boundaries depicted on the map entitled ‘‘Yucca Mountain Site Withdrawal Map,’’ dated July 9,

1996, and on file with the Secretary, are established as the

boundaries of the Yucca Mountain site.

(3) NOTICE AND MAPS.—Within 6 months of the date of the enactment of the Nuclear Waste Policy Act of 1997, the Secretary

shall—

(A) publish in the Federal Register a notice containing a

legal description of the interim storage facility site; and

(B) file copies of the maps described in paragraph (1),

and the legal description of the interim storage facility site

with the Congress, the Secretary of the Interior, the Governor of Nevada, and the Archivist of the United States.

(4) NOTICE AND MAPS.—Concurrent with the Secretary’s application to the Commission for authority to construct the repository, the Secretary shall—

(A) publish in the Federal Register a notice containing a

legal description of the Yucca Mountain site; and

(B) file copies of the maps described in paragraph (2),

and the legal description of the Yucca Mountain site with

the Congress, the Secretary of the Interior, the Governor of

Nevada, and the Archivist of the United States.

(5) CONSTRUCTION.—The maps and legal descriptions of the

interim storage facility site and the Yucca Mountain site referred to in this subsection shall have the same force and effect

as if they were included in this Act. The Secretary may correct
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clerical and typographical errors in the maps and legal descriptions and make minor adjustments in the boundaries of the

sites.

TITLE III—LOCAL RELATIONS

SEC. 301. FINANCIAL ASSISTANCE.

(a) GRANTS.—The Secretary is authorized to make grants to any

affected Indian tribe or affected unit of local government for purposes of enabling the affected Indian tribe or affected unit of local

government—

(1) to review activities taken with respect to the Yucca Mountain site for purposes of determining any potential economic, social, public health and safety, and environmental impacts of the

integrated management system on the affected Indian tribe or

the affected unit of local government and its residents;

(2) to develop a request for impact assistance under subsection (c);

(3) to engage in any monitoring, testing, or evaluation activities with regard to such site;

(4) to provide information to residents regarding any activities of the Secretary, or the Commission with respect to such

site; and

(5) to request information from, and make comments and recommendations to, the Secretary regarding any activities taken

with respect to such site.

(b) SALARY AND TRAVEL EXPENSES.—Any salary or travel expense

that would ordinarily be incurred by any affected Indian tribe or affected unit of local government may not be considered eligible for

funding under this section.

(c) FINANCIAL AND TECHNICAL ASSISTANCE.— (1) ASSISTANCE REQUESTS.—The Secretary is authorized to

offer to provide financial and technical assistance to any affected Indian tribe or affected unit of local government requesting such assistance. Such assistance shall be designed to mitigate the impact on the affected Indian tribe or affected unit of

local government of the development of the integrated management system.

(2) REPORT.—Any affected Indian tribe or affected unit of

local government may request assistance under this section by

preparing and submitting to the Secretary a report on the economic, social, public health and safety, and environmental impacts that are likely to result from activities of the integrated

management system.

(d) OTHER ASSISTANCE.— (1) TAXABLE AMOUNTS.—In addition to financial assistance

provided under this subsection, the Secretary is authorized to

grant to any affected Indian tribe or affected unit of local government an amount each fiscal year equal to the amount such

affected Indian tribe or affected unit of local government, respectively, would receive if authorized to tax integrated management system activities, as such affected Indian tribe or affected

unit of local government taxes the non-Federal real property

and industrial activities occurring within such affected unit of

local government.
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(2) TERMINATION.—Such grants shall continue until such

time as all such activities, development, and operations are terminated at such site.

(3) ASSISTANCE TO INDIAN TRIBES AND UNITS OF LOCAL GOVERNMENT.—

(A) PERIOD.—Any affected Indian tribe or affected unit of

local government may not receive any grant under paragraph (1) after the expiration of the 1-year period following

the date on which the Secretary notifies the affected Indian

tribe or affected unit of local government of the termination

of the operation of the integrated management system.

(B) ACTIVITIES.—Any affected Indian tribe or affected

unit of local government may not receive any further assistance under this section if the integrated management system activities at such site are terminated by the Secretary

or if such activities are permanently enjoined by any court.

SEC. 302. ON-SITE REPRESENTATIVE.

The Secretary shall offer to the unit of local government within

whose jurisdiction a site for an interim storage facility or repository

is located under this Act an opportunity to designate a representative to conduct on-site oversight activities at such site. The Secretary

is authorized to pay the reasonable expenses of such representative.

SEC. 303. ACCEPTANCE OF BENEFITS.

(a) CONSENT.—The acceptance or use of any of the benefits provided under this title by any affected Indian tribe or affected unit

of local government shall not be deemed to be an expression of consent, express, or implied, either under the Constitution of the State

or any law thereof, to the siting of an interim storage facility or repository in the State of Nevada, any provision of such Constitution

or laws to the contrary notwithstanding.

(b) ARGUMENTS.—Neither the United States nor any other entity

may assert any argument based on legal or equitable estoppel, or acquiescence, or waiver, or consensual involvement, in response to any

decision by the State to oppose the siting in Nevada of an interim

storage facility or repository premised upon or related to the acceptance or use of benefits under this title.

(c) LIABILITY.—No liability of any nature shall accrue to be asserted against any official of any governmental unit of Nevada premised solely upon the acceptance or use of benefits under this title.

SEC. 304. RESTRICTIONS ON USE OF FUNDS.

None of the funding provided under this title may be used—

(1) directly or indirectly to influence legislative action on any

matter pending before Congress or a State legislature or for any

lobbying activity as provided in section 1913 of title 18, United

States Code;

(2) for litigation purposes; and

(3) to support multistate efforts or other coalition-building activities inconsistent with the purposes of this Act.

SEC. 305. LAND CONVEYANCES.

(a) CONVEYANCES OF PUBLIC LANDS.—One hundred and twenty

days after enactment of this Act, all rights, title and interest of the

United States in the property described in subsection (b), and im-
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provements thereon, together with all necessary easements for utilities and ingress and egress to such property, including, but not limited to, the right to improve those easements, are conveyed by operation of law to the County of Nye, Nevada, unless the county notifies

the Secretary of the Interior or the head of such other appropriate

agency in writing within 60 days of such date of enactment that it

elects not to take title to all or any part of the property, except that

any lands conveyed to the County of Nye under this subsection that

are subject to a Federal grazing permit or lease or a similar federally granted permit or lease shall be conveyed between 60 and 120

days of the earliest time the Federal agency administering or granting the permit or lease would be able to legally terminate such right

under the statutes and regulations existing at the date of enactment

of this Act, unless Nye County and the affected holder of the permit

or lease negotiate an agreement that allows for an earlier conveyance.

(b) SPECIAL CONVEYANCES.—Notwithstanding any other law, the

following public lands depicted on the maps and legal descriptions

dated October 11, 1995, and on file with the Secretary shall be conveyed under subsection (a) to the County of Nye, Nevada:

Map 1: Proposed Pahrump Industrial Park Site

Map 2: Proposed Lathrop Wells (Gate 510) Industrial Park

Site

Map 3: Pahrump Landfill Sites

Map 4: Amargosa Valley Regional Landfill Site

Map 5: Amargosa Valley Municipal Landfill Site

Map 6: Beatty Landfill/Transfer Station Site

Map 7: Round Mountain Landfill Site

Map 8: Tonopah Landfill Site

Map 9: Gabbs Landfill Site.

(3) CONSTRUCTION.—The maps and legal descriptions of special conveyances referred to in subsection (b) shall have the

same force and effect as if they were included in this Act. The

Secretary may correct clerical and typographical errors in the

maps and legal descriptions and make minor adjustments in

the boundaries of the sites.

(4) EVIDENCE OF TITLE TRANSFER.—Upon the request of the

County of Nye, Nevada, the Secretary of the Interior shall provide evidence of title transfer.

TITLE IV—FUNDING AND ORGANIZATION

SEC. 401. PROGRAM FUNDING.

(a) CONTRACTS.— (1) AUTHORITY OF SECRETARY.—In the performance of the

Secretary’s functions under this Act, the Secretary is authorized

to enter into contracts with any person who generates or holds

title to spent nuclear fuel or high-level radioactive waste of domestic origin for the acceptance of title and possession, transportation, interim storage, and disposal of such waste or spent

fuel. Such contracts shall provide for payment of annual fees to

the Secretary in the amounts set by the Secretary pursuant to

paragraphs (2) and (3). Except as provided in paragraph (3),

fees assessed pursuant to this paragraph shall be paid to the

Treasury of the United States and shall be available for use by
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the Secretary pursuant to this section until expended. Subsequent to the date of enactment of the Nuclear Waste Policy Act

of 1997, the contracts executed under section 302(a) of the Nuclear Waste Policy Act of 1982 shall continue in effect under

this Act, provided that the Secretary shall consent to an amendment to such contracts as necessary to implement the provisions

of this Act.

(2) ANNUAL FEES.— (A) For electricity generated by civilian nuclear power reactors and sold between January 7, 1983, and September

30, 2003, the fee under paragraph (1) shall be equal to 1.0

mill per kilowatt hour generated and sold. For electricity

generated by civilian nuclear power reactors and sold on or

after October 1, 2003, the aggregate amount of fees collected

during each fiscal year shall be no greater than the annual

level of appropriations for expenditures on those activities

consistent with subsection (d) for that fiscal year, minus—

(i) any unobligated balance collected pursuant to this

section during the previous fiscal year; and

(ii) the percentage of such appropriation required to

be funded by the Federal Government pursuant to section 403;

The Secretary shall determine the level of the annual fee for

each civilian nuclear power reactor based on the amount of

electricity generated and sold, except that the annual fee

collected under this subparagraph shall not exceed 1.0 mill

per kilowatt-hour generated and sold.

(B) EXPENDITURES IF SHORTFALL.—If, during any fiscal

year on or after October 1, 2002, the aggregate amount of

fees assessed pursuant to subparagraph (A) is less than the

annual level of appropriations for expenditures on those activities specified in subsection (d) for that fiscal year,

minus—

(i) any unobligated balance collected pursuant to this

section during the previous fiscal year; and

(ii) the percentage of such appropriations required to

be funded by the Federal Government pursuant to section 403;

the Secretary may make expenditures from the Nuclear

Waste Fund up to the level of the fees assessed.

(C) RULES.—The Secretary shall, by rule, establish procedures necessary to implement this paragraph.

(3) ONE-TIME FEE.—For spent nuclear fuel or solidified highlevel radioactive waste derived from spent nuclear fuel, which

fuel was used to generate electricity in a civilian nuclear power

reactor prior to January 7, 1983, the fee shall be in an amount

equivalent to an average charge of 1.0 mill per kilowatt-hour

for electricity generated by such spent nuclear fuel, or such solidified high-level waste derived therefrom. Payment of such

one-time fee prior to the date of enactment of the Nuclear Waste

Policy Act of 1997 shall satisfy the obligation imposed under

this paragraph. Any one-time fee paid and collected subsequent

to the date of enactment of the Nuclear Waste Policy Act of 1997

pursuant to the contracts, including any interest due pursuant
149

to such contracts, shall be paid to the Nuclear Waste Fund no

later than September 30, 2002. The Commission shall suspend

the license of any licensee who fails or refuses to pay the full

amount of the fee referred to in this paragraph on or before September 30, 2002, and the license shall remain suspended until

the full amount of the fee referred to in this paragraph is paid.

The person paying the fee under this paragraph to the Secretary

shall have no further financial obligation to the Federal Government for the long-term storage and permanent disposal of

spent fuel or high-level radioactive waste derived from spent

nuclear fuel used to generate electricity in a civilian power reactor prior to January 7, 1983.

(4) ADJUSTMENTS TO FEE.—The Secretary shall annually review the amount of the fees established by paragraphs (2) and

(3), together with the existing balance of the Nuclear Waste

Fund on the date of enactment of the Nuclear Waste Policy Act

of 1997, to evaluate whether collection of the fee will provide

sufficient revenues to offset the costs as defined in subsection

(c)(2). In the event the Secretary determines that the revenues

being collected are either insufficient or excessive to recover the

costs incurred by the Federal Government that are specified in

subsection (c)(2), the Secretary shall propose an adjustment to

the fee in subsection (c)(2) to ensure full cost recovery. The Secretary shall immediately transmit the proposal for such an adjustment to both Houses of Congress.

(b) ADVANCE CONTRACTING REQUIREMENT.—

(1) IN GENERAL.—

(A) LICENSE ISSUANCE AND RENEWAL.—The Commission

shall not issue or renew a license to any person to use a utilization or production facility under the authority of section

103 or 104 of the Atomic Energy Act of 1954 (42 U.S.C.

2133, 2134) unless—

(i) such person has entered into a contract under

subsection (a) with the Secretary; or

(ii) the Secretary affirms in writing that such person

is actively and in good faith negotiating with the Secretary for a contract under this section.

(B) PRECONDITION.—The Commission, as it deems necessary or appropriate, may require as a precondition to the

issuance or renewal of a license under section 103 or 104

of the Atomic Energy Act of 1954 (42 U.S.C. 2133, 2134)

that the applicant for such license shall have entered into

an agreement with the Secretary for the disposal of spent

nuclear fuel and high-level radioactive waste that may result from the use of such license.

(2) DISPOSAL IN REPOSITORY.—Except as provided in paragraph (1), no spent nuclear fuel or high-level radioactive waste

generated or owned by any person (other than a department of

the United States referred to in section 101 or 102 of title 5,

United States Code) may be disposed of by the Secretary in the

repository unless the generator or owner of such spent fuel or

waste has entered into a contract under subsection (a) with the

Secretary by not later than the date on which such generator or
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owner commences generation of, or takes title to, such spent fuel

or waste.

(3) ASSIGNMENT.—The rights and duties of contract holders

are assignable.

(c) NUCLEAR WASTE FUND.— (1) IN GENERAL.—The Nuclear Waste Fund established in the

Treasury of the United States under section 302(c) of the Nuclear Waste Policy Act of 1982 shall continue in effect under

this Act and shall consist of—

(A) the existing balance in the Nuclear Waste Fund on

the date of enactment of the Nuclear Waste Policy Act of

1997; and

(B) all receipts, proceeds, and recoveries realized under

subsections (a), and (c)(3) subsequent to the date of enactment of the Nuclear Waste Policy Act of 1997, which shall

be deposited in the Nuclear Waste Fund immediately upon

their realization.

(2) USE.—The Secretary may make expenditures from the Nuclear Waste Fund, subject to subsections (d) and (e), only for

purposes of the integrated management system.

(3) ADMINISTRATION OF NUCLEAR WASTE FUND.— (A) IN GENERAL.—The Secretary of the Treasury shall

hold the Nuclear Waste Fund and, after consultation with

the Secretary, annually report to the Congress on the financial condition and operations of the Nuclear Waste Fund

during the preceding fiscal year.

(B) AMOUNTS IN EXCESS OF CURRENT NEEDS.—If the Secretary determines that the Nuclear Waste Fund contains at

any time amounts in excess of current needs, the Secretary

may request the Secretary of the Treasury to invest such

amounts, or any portion of such amounts as the Secretary

determines to be appropriate, in obligations of the United

States—

(i) having maturities determined by the Secretary of

the Treasury to be appropriate to the needs of the Nuclear Waste Fund; and

(ii) bearing interest at rates determined to be appropriate by the Secretary of the Treasury, taking into consideration the current average market yield on outstanding marketable obligations of the United States

with remaining periods to maturity comparable to the

maturities of such investments, except that the interest

rate on such investments shall not exceed the average

interest rate applicable to existing borrowings.

(C) EXEMPTION.—Receipts, proceeds, and recoveries realized by the Secretary under this section, and expenditures

of amounts from the Nuclear Waste Fund, shall be exempt

from annual apportionment under the provisions of subchapter II of chapter 15 of title 31, United States Code.

(d) BUDGET.—The Secretary shall submit the budget for implementation of the Secretary’s responsibilities under this Act to the Office of Management and Budget annually along with the budget of

the Department of Energy submitted at such time in accordance

with chapter 11 of title 31, United States Code. The budget shall
151

consist of the estimates made by the Secretary of expenditures under

this Act and other relevant financial matters for the succeeding 3

fiscal years, and shall be included in the budget of the United

States Government.

(e) APPROPRIATIONS.—The Secretary may make expenditures from

the Nuclear Waste Fund, subject to appropriations, which shall remain available until expended.

SEC. 402. OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT.

(a) ESTABLISHMENT.—There hereby is established within the Department of Energy an Office of Civilian Radioactive Waste Management. The Office shall be headed by a Director, who shall be appointed by the President, by and with the advice and consent of the

Senate, and who shall be compensated at the rate payable for level

IV of the Executive Schedule under section 5315 of title 5, United

States Code.

(b) FUNCTIONS OF DIRECTOR.—The Director of the Office shall be

responsible for carrying out the functions of the Secretary under this

Act, subject to the general supervision of the Secretary. The Director

of the Office shall be directly responsible to the Secretary.

SEC. 403. FEDERAL CONTRIBUTION.

(a) ALLOCATION.—No later than 1 year from the date of enactment

of the Nuclear Waste Policy Act of 1997, acting pursuant to section

553 of title 5, United States Code, the Secretary shall issue a final

rule establishing the appropriate portion of the costs of managing

spent nuclear fuel and high-level radioactive waste under this Act

allocable to the interim storage or permanent disposal of spent nuclear fuel and high-level radioactive waste from atomic energy defense activities and spent nuclear fuel from foreign research reactors. The share of costs allocable to the management of spent nuclear fuel and high-level radioactive waste from atomic energy defense activities and spent nuclear fuel from foreign research reactors

shall include,

(1) an appropriate portion of the costs associated with research and development activities with respect to development

of an interim storage facility and repository; and

(2) as appropriate, interest on the principal amounts due calculated by reference to the appropriate Treasury bill rate as if

the payments were made at a point in time consistent with the

payment dates for spent nuclear fuel and high-level radioactive

waste under the contracts.

(b) APPROPRIATION REQUEST.—In addition to any request for an

appropriation from the Nuclear Waste Fund, the Secretary shall request annual appropriations from general revenues in amounts sufficient to pay the costs of the management of spent nuclear fuel and

high-level radioactive waste from atomic energy defense activities

and spent nuclear fuel from foreign research reactors, as established

under subsection (a).

(c) REPORT.—In conjunction with the annual report submitted to

Congress under section 702, the Secretary shall advise the Congress

annually of the amount of spent nuclear fuel and high-level radioactive waste from atomic energy defense activities and spent nuclear

fuel from foreign research reactors, requiring management in the integrated management system.
152

(d) AUTHORIZATION.—There is authorized to be appropriated to

the Secretary, from general revenues, for carrying out the purposes

of this Act, such sums as may be necessary to pay the costs of the

management of spent nuclear fuel and high-level radioactive waste

from atomic energy defense activities and spent nuclear fuel from

foreign research reactors, as established under subsection (a).

TITLE V—GENERAL AND MISCELLANEOUS PROVISIONS

SEC. 501. COMPLIANCE WITH OTHER LAWS.

If the requirements of any Federal, State, or local law (including

a requirement imposed by regulation or by any other means under

such a law) are inconsistent with or duplicative of the requirements

of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) or of this

Act, the Secretary shall comply only with the requirements of the

Atomic Energy Act of 1954 and of this Act in implementing the integrated management system.

SEC. 502. JUDICIAL REVIEW OF AGENCY ACTIONS.

(a) JURISDICTION OF THE UNITED STATES COURTS OF APPEALS.— (1) ORIGINAL AND EXCLUSIVE JURISDICTION.—Except for review in the Supreme Court of the United States, and except as

otherwise provided in this Act, the United States courts of appeals shall have original and exclusive jurisdiction over any

civil action—

(A) for review of any final decision or action of the Secretary, the President, or the Commission under this Act;

(B) alleging the failure of the Secretary, the President, or

the Commission to make any decision, or take any action,

required under this Act;

(C) challenging the constitutionality of any decision

made, or action taken, under any provision of this Act; or

(D) for review of any environmental impact statement

prepared or environmental assessment pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.) with respect to any action under this Act or alleging

a failure to prepare such statement with respect to any such

action.

(2) VENUE.—The venue of any proceeding under this section

shall be in the judicial circuit in which the petitioner involved

resides or has its principal office, or in the United States Court

of Appeals for the District of Columbia Circuit.

(b) DEADLINE FOR COMMENCING ACTION.— A civil action for judicial review described under subsection (a)(1) may be brought no

later than 180 days after the date of the decision or action or failure

to act involved, as the case may be, except that if a party shows that

he did not know of the decision or action complained of (or of the

failure to act), and that a reasonable person acting under the circumstances would not have known, such party may bring a civil action no later than 180 days after the date such party acquired actual or constructive knowledge or such decision, action, or failure to

act.

(c) APPLICATION OF OTHER LAW.—The provisions of this section

relating to any matter shall apply in lieu of the provisions of any

other Act relating to the same matter.
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SEC. 503. LICENSING OF FACILITY EXPANSIONS AND TRANSSHIPMENTS.

(a) ORAL ARGUMENT.—In any Commission hearing under section

189 of the Atomic Energy Act of 1954 (42 U.S.C. 2239) on an application for a license, or for an amendment to an existing license, filed

after January 7, 1983, to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power reactor, through the use

of high-density fuel storage racks, fuel rod compaction, the transshipment of spent nuclear fuel to another civilian nuclear power reactor within the same utility system, the construction of additional

spent nuclear fuel pool capacity or dry storage capacity, or by other

means, the Commission shall, at the request of any party, provide

an opportunity for oral argument with respect to any matter which

the Commission determines to be in controversy among the parties.

The oral argument shall be preceded by such discovery procedures

as the rules of the Commission shall provide. The Commission shall

require each party, including the Commission staff, to submit in

written form, at the time of the oral argument, a summary of the

facts, data, and arguments upon which such party proposes to rely

that are known at such time to such party. Only facts and data in

the form of sworn testimony or written submission may be relied

upon by the parties during oral argument. Of the materials that

may be submitted by the parties during oral argument, the Commission shall only consider those facts and data that are submitted in

the form of sworn testimony or written submission.

(b) ADJUDICATORY HEARING.—

(1) DESIGNATION.—At the conclusion of any oral argument

under subsection (a), the Commission shall designate any disputed question of fact, together with any remaining questions of

law, for resolution in an adjudicatory hearing only if it determines that—

(A) there is a genuine and substantial dispute of fact

which can only be resolved with sufficient accuracy by the

introduction of evidence in an adjudicatory hearing; and

(B) the decision of the Commission is likely to depend in

whole or in part on the resolution of such dispute.

(2) DETERMINATION.—In making a determination under this

subsection, the Commission—

(A) shall designate in writing the specific facts that are

in genuine and substantial dispute, the reason why the decision of the agency is likely to depend on the resolution of

such facts, and the reason why an adjudicatory hearing is

likely to resolve the dispute; and

(B) shall not consider—

(i) any issue relating to the design, construction, or

operation of any civilian nuclear power reactor already

licensed to operate at such site, or any civilian nuclear

power reactor to which a construction permit has been

granted at such site, unless the Commission determines

that any such issue substantially affects the design,

construction, or operation of the facility or activity for

which such license application, authorization, or

amendment is being considered; or
154

(ii) any siting or design issue fully considered and

decided by the Commission in connection with the issuance of a construction permit or operating license for a

civilian nuclear power reactor at such site, unless—

(I) such issue results from any revision of siting

or design criteria by the Commission following

such decision; and

(II) the Commission determines that such issue

substantially affects the design, construction, or

operation of the facility or activity for which such

license application, authorization, or amendment

is being considered.

(3) APPLICATION.—The provisions of paragraph (2)(B) shall

apply only with respect to licenses, authorizations, or amendments to licenses or authorizations, applied for under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) before December

31, 2005.

(4) CONSTRUCTION.—The provisions of this section shall not

apply to the first application for a license or license amendment

received by the Commission to expand onsite spent fuel storage

capacity by the use of a new technology not previously approved

for use at any nuclear power plant by the Commission.

(c) JUDICIAL REVIEW.—No court shall hold unlawful or set aside

a decision of the Commission in any proceeding described 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 fashion or there are extraordinary circumstances that excuse the failure to present a timely objection;

and

(2) the court finds that such failure has precluded a fair consideration and informed resolution of a significant issue of the

proceeding taken as a whole.

SEC. 504. SITING A SECOND REPOSITORY.

(a) CONGRESSIONAL ACTION REQUIRED.—The Secretary may not

conduct site-specific activities with respect to a second repository unless Congress has specifically authorized and appropriated funds for

such activities.

(b) REPORT.—The Secretary shall report to the President and to

Congress on or after January 1, 2007, but not later than January

1, 2010, on the need for a second repository.

SEC. 505. FINANCIAL ARRANGEMENTS FOR LOW-LEVEL RADIOACTIVE

WASTE SITE CLOSURE.

(a) FINANCIAL ARRANGEMENTS.— (1) STANDARDS AND INSTRUCTIONS.—The Commission shall

establish by rule, regulation, or order, after public notice, and

in accordance with section 181 of the Atomic Energy Act of

1954 (42 U.S.C. 2231), such standards and instructions as the

Commission may deem necessary or desirable to ensure in the

case of each license for the disposal of low-level radioactive

waste that an adequate bond, surety, or other financial arrangement (as determined by the Commission) will be provided

by a licensee to permit completion of all requirements estab-
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lished by the Commission for the decontamination, decommissioning, site closure, and reclamation of sites, structures, and

equipment used in conjunction with such low-level radioactive

waste. Such financial arrangements shall be provided and approved by the Commission, or, in the case of sites within the

boundaries of any agreement State under section 274 of the

Atomic Energy Act of 1954 (42 U.S.C. 2021), by the appropriate

State or State entity, prior to issuance of licenses for low-level

radioactive waste disposal or, in the case of licenses in effect on

January 7, 1983, prior to termination of such licenses.

(2) BONDING, SURETY, OR OTHER FINANCIAL ARRANGE- MENTS.—If the Commission determines that any long-term

maintenance or monitoring, or both, will be necessary at a site

described in paragraph (1), the Commission shall ensure before

termination of the license involved that the licensee has made

available such bonding, surety, or other financial arrangements

as may be necessary to ensure that any necessary long-term

maintenance or monitoring needed for such site will be carried

out by the person having title and custody for such site following license termination.

(b) TITLE AND CUSTODY.—

(1) AUTHORITY OF SECRETARY.—The Secretary shall have authority to assume title and custody of low-level radioactive

waste and the land on which such waste is disposed of, upon

request of the owner of such waste and land and following termination of the license issued by the Commission for such disposal, if the Commission determines that—

(A) the requirements of the Commission for site closure,

decommissioning, and decontamination have been met by

the licensee involved and that such licensee is in compliance with the provisions of subsection (a);

(B) such title and custody will be transferred to the Secretary without cost to the Federal Government; and

(C) Federal ownership and management of such site is

necessary or desirable in order to protect the public health

and safety, and the environment.

(2) PROTECTION.—If the Secretary assumes title and custody

of any such waste and land under this subsection, the Secretary

shall maintain such waste and land in a manner that will protect the public health and safety, and the environment.

(c) SPECIAL SITES.—If the low-level radioactive waste involved is

the result of a licensed activity to recover zirconium, hafnium, and

rare earths from source material, the Secretary, upon request of the

owner of the site involved, shall assume title and custody of such

waste and the land on which it is disposed when such site has been

decontaminated and stabilized in accordance with the requirements

established by the Commission and when such owner has made

adequate financial arrangements approved by the Commission for

the long-term maintenance and monitoring of such site.

SEC. 506. NUCLEAR REGULATORY COMMISSION TRAINING AUTHORIZATION.

The Commission is authorized and directed to promulgate regulations, or other appropriate regulatory guidance, for the training and

qualifications of civilian nuclear power plant operators, supervisors,
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technicians, and other appropriate operating personnel. Such regulations or guidance shall establish simulator training requirements

for applicants for civilian nuclear power plant operator licenses and

for operator requalification programs; requirements governing Commission administration of requalification examinations; requirements for operating tests at civilian nuclear power plant simulators,

and instructional requirements for civilian nuclear power plant licensee personnel training programs.

SEC. 507. EMPLACEMENT SCHEDULE.

(a) The emplacement schedule shall be implemented in accordance with the following:

(1) Emplacement priority ranking shall be determined by the

Department’s annual ‘Acceptance Priority Ranking’ report.

(2) The Secretary’s spent fuel emplacement rate shall be no

less than the following: 1,200 MTU in fiscal year 2000 and

1,200 MTU in fiscal year 2001; 2,000 MTU in fiscal year 2002

and 2,000 MTU in fiscal year 2003; 2,700 MTU in fiscal year

2004; and 3,000 MTU annually thereafter.

(b) If the Secretary is unable to begin emplacement by November

30, 1999 at the rates specified in subsection (a), or if the cumulative

amount emplaced in any year thereafter is less than that which

would have been accepted under the emplacement rate specified in

subsection (a), the Secretary shall, as a mitigation measure, adjust

the emplacement schedule upward such that within 5 years of the

start of emplacement by the Secretary,

(1) the total quantity accepted by the Secretary is consistent

with the total quantity that the Secretary would have accepted

if the Secretary had began emplacement in fiscal year 2000,

and

(2) thereafter the emplacement rate is equivalent to the rate

that would be in place pursuant to paragraph (a) above if the

Secretary had commenced emplacement in fiscal year 2000.

SEC. 508. TRANSFER OF TITLE.

(a) Acceptance by the Secretary of any spent nuclear fuel or highlevel radioactive waste shall constitute a transfer of title to the Secretary.

(b) No later than 6 months following the date of enactment of the

Nuclear Waste Policy Act of 1997, the Secretary is authorized to accept all spent nuclear fuel withdrawn from Dairyland Power Cooperative’s La Crosse Reactor and, upon acceptance, shall provide

Dairyland Power Cooperative with evidence of the title transfer. Immediately upon the Secretary’s acceptance of such spent nuclear

fuel, the Secretary shall assume all responsibility and liability for

the interim storage and permanent disposal thereof and is authorized to compensate Dairyland Power Cooperative for any costs related to operating and maintaining facilities necessary for such storage

from the date of acceptance until the Secretary removes the spent

nuclear fuel from the La Crosse Reactor site.’’

SEC. 509. DECOMMISSIONING PILOT PROGRAM.

(a) AUTHORIZATION.—The Secretary is authorized to establish a

Decommissioning Pilot Program to decommission and decontaminate the sodium-cooled fast breeder experimental test-site reactor located in northwest Arkansas.
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(b) FUNDING.—No funds from the Nuclear Waste Fund may be

used for the Decommissioning Pilot Program.

SEC. 510. WATER RIGHTS.

(a) NO FEDERAL RESERVATION.—Nothing in this Act or any other

Act of Congress shall constitute or be construed to constitute either

an express or implied Federal reservation of water or water rights

for any purpose arising under this Act.

(b) ACQUISITION AND EXERCISE OF WATER RIGHTS UNDER NEVADA LAW.—The United States may acquire and exercise such water

rights as it deems necessary to carry out its responsibilities under

this Act pursuant to the substantive and procedural requirements of

the State of Nevada. Nothing in this Act shall be construed to authorize the use of eminent domain by the United States to acquire

water rights for such lands.

(c) EXERCISE OF WATER RIGHTS GENERALLY UNDER NEVADA

LAWS.—Nothing in this Act shall be construed to limit the exercise

of water rights as provided under Nevada State laws.

TITLE VI—NUCLEAR WASTE TECHNICAL REVIEW BOARD

SEC. 601. DEFINITIONS.

For purposes of this title—

(1) CHAIRMAN.—The term ‘‘Chairman’’ means the Chairman

of the Nuclear Waste Technical Review Board.

(2) BOARD.—The term ‘‘Board’’ means the Nuclear Waste

Technical Review Board continued under section 602.

SEC. 602. NUCLEAR WASTE TECHNICAL REVIEW BOARD.

(a) CONTINUATION OF THE NUCLEAR WASTE TECHNICAL REVIEW

BOARD.—The Nuclear Waste Technical Review Board, established

under section 502(a) of the Nuclear Waste Policy Act of 1982 as constituted prior to the date of enactment of the Nuclear Waste Policy

Act of 1997, shall continue in effect subsequent to the date of enactment of the Nuclear Waste Policy Act of 1997.

(b) MEMBERS.—

(1) NUMBER.—The Board shall consist of 11 members who

shall be appointed by the President not later than 90 days after

December 22, 1987, from among persons nominated by the National Academy of Sciences in accordance with paragraph (3).

(2) CHAIR.—The President shall designate a member of the

Board to serve as Chairman.

(3) NATIONAL ACADEMY OF SCIENCES.—

(A) NOMINATIONS.—The National Academy of Sciences

shall, not later than 90 days after December 22, 1987,

nominate not less than 22 persons for appointment to the

Board from among persons who meet the qualifications described in subparagraph (C).

(B) VACANCIES.—The National Academy of Sciences shall

nominate not less than 2 persons to fill any vacancy on the

Board from among persons who meet the qualifications described in subparagraph (C).

(C) NOMINEES.—

(i) Each person nominated for appointment to the

Board shall be—
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(I) eminent in a field of science or engineering,

including environmental sciences; and

(II) selected solely on the basis of established

records of distinguished service.

(ii) The membership of the Board shall be representatives of the broad range of scientific and engineering

disciplines related to activities under this title.

(iii) No person shall be nominated for appointment to

the Board who is an employee of—

(I) the Department of Energy;

(II) a national laboratory under contract with

the Department of Energy; or

(III) an entity performing spent nuclear fuel or

high-level radioactive waste activities under contract with the Department of Energy.

(4) VACANCIES.—Any vacancy on the Board shall be filled by

the nomination and appointment process described in paragraphs (1) and (3).

(5) TERMS.—Members of the Board shall be appointed for

terms of 4 years, each such term to commence 120 days after

December 22, 1987, except that of the 11 members first appointed to the Board, 5 shall serve for 2 years and 6 shall serve

for 4 years, to be designated by the President at the time of appointment, except that a member of the Board whose term has

expired may continue to serve as a member of the Board until

such member’s successor has taken office.

SEC. 603. FUNCTIONS.

The Board shall evaluate the technical and scientific validity of

activities undertaken by the Secretary after December 22, 1987, including—

(1) site characterization activities; and

(2) activities relating to the packaging or transportation of

high-level radioactive waste or spent nuclear fuel.

SEC. 604. INVESTIGATORY POWERS.

(a) HEARINGS.—Upon request of the Chairman or a majority of

the members of the Board, the Board may hold such hearings, sit

and act at such times and places, take such testimony, and receive

such evidence, as the Board considers appropriate. Any member of

the Board may administer oaths or affirmations to witnesses appearing before the Board.

(b) PRODUCTION OF DOCUMENTS.—

(1) RESPONSE TO INQUIRIES.—Upon the request of the Chairman or a majority of the members of the Board, and subject to

existing law, the Secretary (or any contractor of the Secretary)

shall provide the Board with such records, files, papers, data,

or information as may be necessary to respond to any inquiry

of the Board under this title.

(2) AVAILABILITY OF DRAFTS.—Subject to existing law, information obtainable under paragraph (1) shall not be limited to

final work products of the Secretary, but shall include drafts of

such products and documentation of work in progress.
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SEC. 605. COMPENSATION OF MEMBERS.

(a) IN GENERAL.—Each member of the Board shall be paid at the

rate of pay payable for level III of the Executive Schedule for each

day (including travel time) such member is engaged in the work of

the Board.

(b) TRAVEL EXPENSES.—Each member of the Board may receive

travel expenses, including per diem in lieu of subsidence, in the

same manner as is permitted under sections 5702 and 5703 of title

5, United States Code.

SEC. 606. STAFF.

(a) CLERICAL STAFF.—

(1) AUTHORITY OF CHAIRMAN.—Subject to paragraph (2), the

Chairman may appoint and fix the compensation of such clerical staff as may be necessary to discharge the responsibilities of

the Board.

(2) PROVISIONS OF TITLE 5.—Clerical staff shall be appointed

subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid

in accordance with the provisions of chapter 51 and subchapter

III of chapter 3 of such title relating to classification and General Schedule pay rates.

(b) PROFESSIONAL STAFF.—

(1) AUTHORITY OF CHAIRMAN.—Subject to paragraphs (2) and

(3), the Chairman may appoint and fix the compensation of

such professional staff as may be necessary to discharge the responsibilities of the Board.

(2) NUMBER.—Not more than 10 professional staff members

may be appointed under this subsection.

(3) TITLE 5.—Professional staff members may be appointed

without regard to the provisions of title 5, United States Code,

governing appointments in the competitive service, and may be

paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification

and General Schedule pay rates, except that no individual so

appointed may receive pay in excess of the annual rate of basic

pay payable for GS–18 of the General Schedule.

SEC. 607. SUPPORT SERVICES.

(a) GENERAL SERVICES.—To the extent permitted by law and requested by the Chairman, the Administrator of General Services

shall provide the Board with necessary administrative services, facilities, and support on a reimbursable basis.

(b) ACCOUNTING, RESEARCH, AND TECHNOLOGY ASSESSMENT

SERVICES.—The Comptroller General and the Librarian of Congress

shall, to the extent permitted by law and subject to the availability

of funds, provide the Board with such facilities, support, funds and

services, including staff, as may be necessary for the effective performance of the functions of the Board.

(c) ADDITIONAL SUPPORT.—Upon the request of the Chairman, the

Board may secure directly from the head of any department or agency of the United States information necessary to enable it to carry

out this title.
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(d) MAILS.—The Board may use the United States mails in the

same manner and under the same conditions as other departments

and agencies of the United States.

(e) EXPERTS AND CONSULTANTS.—Subject to such rules as may be

prescribed by the Board, the Chairman may procure temporary and

intermittent services under section 3109(b) of title 5 of the United

States Code, but at rates for individuals not to exceed the daily

equivalent of the maximum annual rate of basic pay payable for

GS–18 of the General Schedule.

SEC. 608. REPORT.

The Board shall report not less than two times per year to Congress and the Secretary its findings, conclusions, and recommendations.

SEC. 609. AUTHORIZATION OF APPROPRIATIONS.

Notwithstanding section 401(d), and subject to section 401(e),

there are authorized to be appropriated for expenditures from

amounts in the Nuclear Waste Fund under section 401(c) such sums

as may be necessary to carry out the provisions of this title.

SEC. 610. TERMINATION OF THE BOARD.

The Board shall cease to exist not later than one year after the

date on which the Secretary begins disposal of spent nuclear fuel or

high-level radioactive waste in the repository.

TITLE VII—MANAGEMENT REFORM

SEC. 701. MANAGEMENT REFORM INITIATIVES.

(a) IN GENERAL.—The Secretary is directed to take actions as necessary to improve the management of the civilian radioactive waste

management program to ensure that the program is operated, to the

maximum extent practicable, in like manner as a private business.

(b) AUDITS.—

(1) STANDARD.—The Office of Civilian Radioactive Waste

Management, its contractors, and subcontractors at all tiers,

shall conduct, or have conducted, audits and examinations of

their operations in accordance with the usual and customary

practices of private corporations engaged in large nuclear construction projects consistent with its role in the program.

(2) TIME.—The management practices and performances of

the Office of Civilian Radioactive Waste Management shall be

audited every 5 years by an independent management consulting firm with significant experience in similar audits of private

corporations engaged in large nuclear construction projects. The

first such audit shall be conducted 5 years after the enactment

of the Nuclear Waste Policy Act of 1997.

(3) TIME.—No audit contemplated by this subsection shall

take longer than 30 days to conduct. An audit report shall be

issued in final form no longer than 60 days after the audit is

commenced.

(4) PUBLIC DOCUMENTS.—All audit reports shall be public

documents and available to any individual upon request.

(d) VALUE ENGINEERING.—The Secretary shall create a value engineering function within the Office of Civilian Radioactive Waste

Management that reports directly to the Director, which shall carry
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out value engineering functions in accordance with the usual and

customary practices of private corporations engaged in large nuclear

construction projects.

(e) SITE CHARACTERIZATION.—The Secretary shall employ, on an

on-going basis, integrated performance modeling to identify appropriate parameters for the remaining site characterization effort and

to eliminate studies of parameters that are shown not to affect longterm repository performance.

SEC. 702. REPORTING.

(a) INITIAL REPORT.—Within 180 days of enactment of this section, the Secretary shall report to Congress on its planned actions

for implementing the provisions of this Act, including the development of the Integrated Waste Management System. Such report

shall include—

(1) an analysis of the Secretary’s progress in meeting its statutory and contractual obligation to accept title to, possession of,

and delivery of spent nuclear fuel and high-level radioactive

waste beginning no later than November 30, 1999, and in accordance with the acceptance schedule;

(2) a detailed schedule and timeline showing each action that

the Secretary intends to take to meet the Secretary’s obligations

under this Act and the contracts;

(3) a detailed description of the Secretary’s contingency plans

in the event that the Secretary is unable to meet the planned

schedule and timeline; and

(4) an analysis by the Secretary of its funding needs for fiscal

years 1997 through 2001.

(b) ANNUAL REPORTS.—On each anniversary of the submittal of

the report required by subsection (a), the Secretary shall make annual reports to the Congress for the purpose of updating the information contained in such report. The annual reports shall be brief

and shall notify the Congress of:

(1) any modifications to the Secretary’s schedule and timeline

for meeting its obligations under this Act;

(2) the reasons for such modifications, and the status of the

implementation of any of the Secretary’s contingency plans; and

(3) the Secretary’s analysis of its funding needs for the ensuing 5 fiscal years.’’

SEC. 703. EFFECTIVE DATE.

This Act shall become effective one day after enactment.

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