Chapter 16

16.11 16.11 Midwest interstate low-level radioactive waste compact.

16.11(1) (1) Article I — Policy and Purpose.

16.11(1)(a) (a) There is created the midwest interstate low-level radioactive waste compact. The states party to this compact recognize that the congress of the United States, by enacting “The Low-Level Radioactive Waste Policy Act”, as amended by the “Low-Level Radioactive Waste Policy Amendments Act of 1985”, 42 USC 2021b to 2021j, has provided for and encouraged the development of low-level radioactive waste compacts as a tool for disposing of such waste. The party states acknowledge that the congress declared that each state is responsible for providing for the availability of capacity either within or outside the state for the disposal of low-level radioactive waste generated within its borders, except for waste generated as a result of certain defense activities of the federal government or federal research and development activities. The party states also recognize that the disposal of low-level radioactive waste is handled most efficiently on a regional basis and that the safe and efficient management of low-level radioactive waste generated within the region requires that sufficient capacity to dispose of such waste be properly provided. It is the policy of the party states to enter into a regional low-level radioactive waste disposal compact for the purpose of:

16.11(1)(a)1. 1. Providing the instrument and framework for a cooperative effort;

16.11(1)(a)2. 2. Providing sufficient facilities for the proper disposal of low-level radioactive waste generated in the region;

16.11(1)(a)3. 3. Protecting the health and safety of the citizens of the region;

16.11(1)(a)4. 4. Limiting the number of facilities required to effectively and efficiently dispose of low-level radioactive waste generated in the region;

16.11(1)(a)5. 5. Encouraging source reduction and the environmentally sound treatment of waste that is generated to minimize the amount of waste to be disposed of;

16.11(1)(a)6. 6. Ensuring that the costs, expenses, liabilities and obligations of low-level radioactive waste disposal are paid by generators and other persons who use compact facilities to dispose of their waste;

16.11(1)(a)7. 7. Ensuring that the obligations of low-level radioactive waste disposal that are the responsibility of the party states are shared equitably among them;

16.11(1)(a)8. 8. Ensuring that the party states that comply with the terms of this compact and fulfill their obligations under it share equitably in the benefits of the successful disposal of low-level radioactive waste; and

16.11(1)(a)9. 9. Ensuring the environmentally sound, economical and secure disposal of low-level radioactive wastes.

16.11(1)(b) (b) Implicit in the congressional consent to this compact is the expectation by the congress and the party states that the appropriate federal agencies will actively assist the compact commission and the individual party states to this compact by:

16.11(1)(b)1. 1. Expeditious enforcement of federal rules, regulations and laws;

16.11(1)(b)2. 2. Imposition of sanctions against those found to be in violation of federal rules, regulations and laws; and

16.11(1)(b)3. 3. Timely inspection of their licensees to determine the compliance with these rules, regulations and laws.

16.11(2) (2) Article II — Definitions. As used in this compact, unless the context clearly requires a different construction:

16.11(2)(a) (a) “Care” means the continued observation of a facility after closing for the purposes of detecting a need for maintenance, ensuring environmental safety and determining compliance with applicable licensure and regulatory requirements and includes the correction of problems which are detected as a result of that observation.

16.11(2)(b) (b) “Close”, “closed” or “closing” means that the compact facility with respect to which any of those terms is used has ceased to accept waste for disposal. “Permanently closed” means that the compact facility with respect to which the term is used has ceased to accept waste because it has operated for 20 years or a longer period of time as authorized by sub. (6) (i), its capacity has been reached, the commission has authorized it to close pursuant to sub. (3) (h) 7., the host state of such facility has withdrawn from the compact or had its membership revoked or this compact has been dissolved.

16.11(2)(c) (c) “Commission” means the midwest interstate low-level radioactive waste commission.

16.11(2)(d) (d) “Compact facility” means a waste disposal facility that is located within the region and that is established by a party state pursuant to the designation of that state as a host state by the commission.

16.11(2)(e) (e) “Development” includes the characterization of potential sites for a waste disposal facility, siting of such a facility, licensing of such a facility, and other actions taken by a host state prior to the commencement of construction of such a facility to fulfill its obligations as a host state.

16.11(2)(f) (f) “Disposal”, with regard to low-level radioactive waste, means the permanent isolation of that waste in accordance with the requirements established by the U.S. nuclear regulatory commission or the licensing agreement state.

16.11(2)(g) (g) “Disposal plan” means the plan adopted by the commission for the disposal of waste within the region.

16.11(2)(h) (h) “Facility” means a parcel of land or site, together with the structures, equipment and improvements on or appurtenant to the land or site, which is or has been used for the disposal of low-level radioactive waste, which is being developed for that purpose or upon which the construction of improvements or installation of equipment is occurring for that purpose.

16.11(2)(i) (i) “Final decision” means a final action of the commission determining the legal rights, duties or privileges of any person. “Final decision” does not include preliminary, procedural or intermediate actions by the commission, actions regulating the internal administration of the commission or actions of the commission to enter into or refrain from entering into contracts or agreements with vendors to provide goods or services to the commission.

16.11(2)(j) (j) “Generator” means a person who first produces low-level radioactive waste, including, without limitation, any person who does so in the course of or incident to manufacturing, power generation, processing, waste treatment, waste storage, medical diagnosis and treatment, research or other industrial or commercial activity. If the person who first produced an item or quantity of waste cannot be identified, “generator” means the person first possessing the waste who can be identified.

16.11(2)(k) (k) “Host state” means any state which is designated by the commission to host a compact facility or has hosted a compact facility.

16.11(2)(L) (L) “Long-term care” means those activities taken by a host state after a compact facility is permanently closed to ensure the protection of air, land and water resources and the health and safety of all people who may be affected by the facility.

16.11(2)(m) (m) “Low-level radioactive waste” or “waste” means radioactive waste that is not classified as high-level radioactive waste and that is class A, B or C low-level radioactive waste as defined in 10 CFR 61.55, as that section existed on January 26, 1983. “Low-level radioactive waste” or “waste” does not include any such radioactive waste that is owned or generated by the U.S. department of energy or by the U.S. navy as a result of the decommissioning of its vessels; or as a result of any research, development, testing or production of any atomic weapon.

16.11(2)(n) (n) “Operates”, “operational” or “operating” means that the compact facility with respect to which any of those terms is used accepts waste for disposal.

16.11(2)(o) (o) “Party state” means any eligible state that enacts this compact into law, pays any eligibility fee established by the commission, and has not withdrawn from this compact or had its membership in this compact revoked, provided that a state that has withdrawn from this compact or had its membership revoked again becomes a party state if it is readmitted to membership in this compact pursuant to sub. (8) (a). “Party state” includes any host state. “Party state” also includes any statutorily created administrative departments, agencies or instrumentalities of a party state, but does not include municipal corporations, regional or local units of government or other political subdivisions of a party state that are responsible for governmental activities on less than a statewide basis.

16.11(2)(p) (p) “Person” means any individual, corporation, association, business enterprise or other legal entity either public or private and any legal successor, representative, agent or agency of that individual, corporation, association, business enterprise or other legal entity. “Person” also includes the United States, states, political subdivisions of states and any department, agency or instrumentality of the United States or a state.

16.11(2)(q) (q) “Region” means the area of the party states.

16.11(2)(r) (r) “Site” means the geographic location of a facility.

16.11(2)(s) (s) “State” means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico, the Virgin Islands or any other territorial possession of the United States.

16.11(2)(t) (t) “Storage” means the temporary holding of waste.

16.11(2)(u) (u) “Treatment” means any method, technique or process, including storage for radioactive decay, designed to change the physical, chemical or biological characteristics or composition of any waste in order to render the waste safer for transport or management, amenable to recovery, convertible to another usable material or reduced in volume.

16.11(2)(v) (v) “Waste management”, “manage waste”, “management of waste”, “management” or “managed” means the storage, treatment or disposal of waste.

16.11(3) (3) Article III — The Commission.

16.11(3)(a) (a) There is created the midwest interstate low-level radioactive waste commission. The commission consists of one voting member from each party state. The governor of each party state shall notify the commission in writing of its member and any alternates. An alternate may act on behalf of the member only in that member’s absence. The method for selection and the expenses of each commission member shall be the responsibility of the member’s respective state.

16.11(3)(b) (b) Each commission member is entitled to one vote. Except as otherwise specifically provided in this compact, an action of the commission is binding if a majority of the total membership casts its vote in the affirmative. A party state may direct its member or alternate member of the commission how to vote or not to vote on matters before the commission.

16.11(3)(c) (c) The commission shall elect annually from among its members a chairperson. The commission shall adopt and publish, in convenient form, bylaws and policies which are not inconsistent with this compact, including procedures for the use of binding arbitration under sub. (6) (o) and procedures which substantially conform with the provisions of “The Federal Administrative Procedure Act”, 5 USC 500 to 559, in regard to notice, conduct and recording of meetings; access by the public to records; provision of information to the public; conduct of adjudicatory hearings; and issuance of decisions.

16.11(3)(d) (d) The commission shall meet at least once annually and shall also meet upon the call of the chairperson or any other commission member.

16.11(3)(e) (e) All meetings of the commission shall be open to the public with reasonable advance notice. The commission may, by majority vote, close a meeting to the public for the purpose of considering sensitive personnel or legal strategy matters. However, all commission actions and decisions shall be made in open meetings and appropriately recorded.

16.11(3)(f) (f) The commission may establish advisory committees for the purpose of advising the commission on any matters pertaining to waste management.

16.11(3)(g) (g) The office of the commission shall be in a party state. The commission may appoint or contract for and compensate such limited staff necessary to carry out its duties and functions. The staff shall have the responsibilities and authority delegated to it by the commission in its bylaws. The staff shall serve at the commission’s pleasure with the exception that staff hired as the result of securing federal funds shall be hired and governed under applicable federal statutes and regulations. In selecting any staff, the commission shall assure that the staff has adequate experience and formal training to carry out the functions assigned to it by the commission.

16.11(3)(h) (h) The commission may do any or all of the following:

16.11(3)(h)1. 1. Appear as an intervenor or party in interest before any court of law or any federal, state or local agency, board or commission in any matter related to waste management. In order to represent its views, the commission may arrange for any expert testimony, reports, evidence or other participation.

16.11(3)(h)2. 2. Review any emergency closing of a compact facility, determine the appropriateness of that closing and take whatever lawful actions are necessary to ensure that the interests of the region are protected.

16.11(3)(h)3. 3. Take any action which is appropriate and necessary to perform its duties and functions as provided in this compact.

16.11(3)(h)4. 4. Approve the disposal of naturally occurring and accelerator produced radioactive material at a compact facility. The commission shall not approve the acceptance of such material without first making an explicit determination of the effect of the new waste stream on the compact facility’s maximum capacity. Such approval requires the affirmative vote of a majority of the commission, including the affirmative vote of the member from the host state of the compact facility that would accept the material for disposal. Any such host state may, at any time, rescind its vote granting the approval and, thereafter, additional naturally occurring and accelerator produced radioactive material shall not be disposed of at a compact facility unless the disposal is again approved. All provisions of this compact apply to the disposal of naturally occurring and accelerator produced radioactive material that has been approved for disposal at a compact waste facility pursuant to this subdivision.

16.11(3)(h)5. 5. Enter into contracts in order to perform its duties and functions as provided in this compact.

16.11(3)(h)6. 6. When approved by the commission, with the member from each host state in which an affected compact facility is operating or being developed or constructed voting in the affirmative, enter into agreements to do any of the following:

16.11(3)(h)6.a. a. Import, for disposal within the region, waste generated outside the region.

16.11(3)(h)6.b. b. Export, for disposal outside the region, waste generated inside the region.

16.11(3)(h)6.c. c. Dispose of waste generated within the region at a facility within the region that is not a compact facility.

16.11(3)(h)7. 7. Authorize a host state to permanently close a compact facility located within its borders earlier than otherwise would be required by sub. (6) (i). Such a closing requires the affirmative vote of a majority of the commission, including the affirmative vote of the member from the state in which the affected compact facility is located.

16.11(3)(i) (i) The commission shall do all of the following:

16.11(3)(i)1. 1. Submit an annual report to, and otherwise communicate with, the governors and the appropriate officers of the legislative bodies of the party states regarding the activities of the commission.

16.11(3)(i)2. 2. Adopt and amend, by a two-thirds vote of the membership, in accordance with the procedures and criteria developed pursuant to sub. (4), a regional disposal plan which designates host states for the establishment of needed compact facilities.

16.11(3)(i)3. 3. Adopt an annual budget.

16.11(3)(i)4. 4. Establish and implement a procedure for determining the capacity of a compact facility. The capacity of a compact facility shall be established as soon as reasonably practical after the host state of the facility is designated and shall not be changed thereafter without the consent of the host state. The capacity of a compact facility shall be based on the projected volume or radioactive characteristics, or both, of the waste to be disposed of at the facility during the period set forth in sub. (6) (i).

16.11(3)(i)5. 5. Provide a host state with funds necessary to pay reasonable development expenses incurred by the host state after it is designated to host a compact facility.

16.11(3)(i)6. 6. Establish and implement procedures for making payments from the remedial action fund provided for in par. (p).

16.11(3)(i)7. 7. Establish and implement procedures to investigate any complaint joined in by 2 or more party states regarding another party state’s performance of its obligations under this compact.

16.11(3)(i)8. 8. Adopt policies promoting source reduction and the environmentally sound treatment of waste in order to minimize the amount of waste to be disposed of at compact facilities.

16.11(3)(i)9. 9. Establish and implement procedures for obtaining information from generators regarding the volume and characteristics of waste projected to be disposed of at compact facilities and regarding generator activities with respect to source reduction, recycling and treatment of waste.

16.11(3)(i)10. 10. Prepare annual reports regarding the volume and characteristics of waste projected to be disposed of at compact facilities.

16.11(3)(j) (j) Funding for the commission shall be provided as follows:

16.11(3)(j)1. 1. When no compact facility is operating, the commission may assess fees to be collected from generators of waste in the region. The fees shall be reasonable and equitable. The commission shall establish and implement procedures for assessing and collecting the fees. The procedures may allow the assessing of fees against less than all generators of waste in the region; provided that if fees are assessed against less than all generators of waste in the region, generators paying the fees shall be reimbursed the amount of the fees, with reasonable interest, out of the revenues of operating compact facilities.

16.11(3)(j)2. 2. When a compact facility is operating, funding for the commission shall be provided through a surcharge collected by the host state as part of the fee system provided for in sub. (6) (j). The surcharge to be collected by the host state shall be determined by the commission and shall be reasonable and equitable.

16.11(3)(j)3. 3. In the aggregate, the fees or surcharges, as the case may be, shall be no more than is necessary to:

16.11(3)(j)3.a. a. Cover the annual budget of the commission.

16.11(3)(j)3.b. b. Provide a host state with the funds necessary to pay reasonable development expenses incurred by the host state after it is designated to host a compact facility.

16.11(3)(j)3.c. c. Provide moneys for deposit in the remedial action fund established pursuant to par. (p).

16.11(3)(j)3.d. d. Provide moneys to be added to an inadequately funded long-term care fund as provided in sub. (6) (o).

16.11(3)(k) (k) Financial statements of the commission shall be prepared according to generally accepted accounting principles. The commission shall contract with an independent certified public accountant to annually audit its financial statements and to submit an audit report to the commission. The audit report shall be made a part of the annual report of the commission required by this subsection.

16.11(3)(L) (L) The commission may accept for any of its purposes and functions and may utilize and dispose of any donations, grants of money, equipment, supplies, materials and services from any state or the United States, or any subdivision or agency thereof, or interstate agency or from any institution, person, firm or corporation. The nature, amount and condition, if any, attendant upon any donation or grant accepted or received by the commission together with the identity of the donor, grantor or lender, shall be detailed in the annual report of the commission.

16.11(3)(m) (m) The commission is a legal entity separate and distinct from the party states. Members of the commission and its employees are not personally liable for actions taken by them in their official capacity. The commission is not liable or otherwise responsible for any costs, expenses or liabilities resulting from the development, construction, operation, regulation, closing or long-term care of any compact facility or any noncompact facility made available to the region by any contract or agreement entered into by the commission under par. (h) 6. Nothing in this paragraph relieves the commission of its obligations under this subsection or under contracts to which it is a party. Any liabilities of the commission are not liabilities of the party states.

16.11(3)(n) (n) Final decisions of the commission shall be made, and shall be subject to judicial review, in accordance with all of the following conditions:

16.11(3)(n)1. 1. Every final decision shall be made at an open meeting of the commission. Before making a final decision, the commission shall provide an opportunity for public comment on the matter to be decided. Each final decision shall be reduced to writing and shall set forth the commission’s reasons for making the decision.

16.11(3)(n)2. 2. Before making a final decision, the commission may conduct an adjudicatory hearing on the proposed decision.

16.11(3)(n)3. 3. Judicial review of a final decision shall be initiated by filing a petition in the U.S. district court for the district in which the person seeking the review resides or in which the commission’s office is located not later than 60 days after issuance of the commission’s written decision. Concurrently with filing the petition for review with the court, the petitioner shall serve a copy of the petition on the commission. Within 5 days after receiving a copy of the petition, the commission shall mail a copy of it to each party state and to all other persons who have notified the commission of their desire to receive copies of such petitions. Any failure of the commission to so mail copies of the petition does not affect the jurisdiction of the reviewing court. Except as otherwise provided in this subdivision, standing to obtain judicial review of final decisions of the commission and the form and scope of the review are subject to and governed by 5 USC 706.

16.11(3)(n)4. 4. If a party state seeks judicial review of a final decision of the commission that does any of the following, the facts shall be subject to trial de novo by the reviewing court unless trial de novo of the facts is affirmatively waived in writing by the party state:

16.11(3)(n)4.a. a. Imposes financial penalties on a party state.

16.11(3)(n)4.b. b. Suspends the right of a party state to have waste generated within its borders disposed of at a compact facility or at a noncompact facility made available to the region by an agreement entered into by the commission under par. (h) 6.

16.11(3)(n)4.c. c. Terminates the designation of a party state as a host state.

16.11(3)(n)4.d. d. Revokes the membership of a party state in this compact.