260.700. Membership authorized--compact--purposes.
Membership authorized--compact--purposes.
260.700. The "Midwest Interstate Low-Level Radioactive Waste Compact" ishereby enacted into law and entered into by this state with all other stateslegally joining therein in the form substantially as follows:
THE MIDWEST INTERSTATE
LOW-LEVEL RADIOACTIVE WASTE COMPACT
ARTICLE I. POLICY AND PURPOSE
There is created the "Midwest Interstate Low-Level Radioactive WasteCompact".
The states party to this compact recognize that the Congress of theUnited States, by enacting the Low-Level Radioactive Waste Policy Act, asamended by the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42U.S.C. 2021b to j, has provided for and encouraged the development oflow-level radioactive waste compacts as a tool for disposing of such waste.The party states acknowledge that the Congress declared that each state isresponsible for providing for the availability of capacity either within oroutside the state for the disposal of low-level radioactive waste generatedwithin its borders, except for waste generated as a result of certain defenseactivities of the federal government or federal research and developmentactivities. The party states also recognize that the disposal of low-levelradioactive waste is handled most efficiently on a regional basis; and, thatthe safe and efficient management of low-level radioactive waste generatedwithin the region requires that sufficient capacity to dispose of such wastebe properly provided.
a. It is the policy of the party states to enter into a regionallow-level radioactive waste disposal compact for the purpose of:
1. Providing the instrument and framework for a cooperative effort;
2. Providing sufficient facilities for the proper disposal of low-levelradioactive waste generated in the region;
3. Protecting the health and safety of the citizens of the region;
4. Limiting the number of facilities required to effectively andefficiently dispose of low-level radioactive waste generated in the region;
5. Encouraging source reduction and the environmentally sound treatmentof waste that is generated to minimize the amount of waste to be disposed of;
6. Ensuring that the costs, expenses, liabilities, and obligations oflow-level radioactive waste disposal are paid by generators and other personswho use compact facilities to dispose of their waste;
7. Ensuring that the obligations of low-level radioactive waste disposalthat are the responsibility of the party states are shared equitably amongthem;
8. Ensuring that the party states that comply with the terms of thiscompact and fulfill their obligations under it share equitably in the benefitsof the successful disposal of low-level radioactive waste; and
9. Ensuring the environmentally sound, economical, and secure disposalof low-level radioactive wastes.
b. Implicit in the congressional consent to this compact is theexpectation by the Congress and the party states that the appropriate federalagencies will actively assist the compact commission and the individual partystates to this compact by:
1. Expeditious enforcement of federal rules, regulations and laws;
2. Imposition of sanctions against those found to be in violation offederal rules, regulations and laws; and
3. Timely inspection of their licensees to determine their compliancewith these rules, regulations and laws.
ARTICLE II. DEFINITIONS
As used in this compact, unless the context clearly requires a differentconstruction:
a. "Care" means the continued observation of a facility after closingfor the purposes of detecting a need for maintenance, ensuring environmentalsafety, and determining compliance with applicable licensure and regulatoryrequirements and including the correction of problems which are detected as aresult of that observation.
b. "Close", "Closed", or "Closing" means that the compact facility withrespect to which any of those terms is used has ceased to accept waste fordisposal. "Permanently closed" means that the compact facility with respectto which the term is used has ceased to accept waste because it has operatedfor twenty years or a longer period of time as authorized by Article VI.i. ofthis compact, its capacity has been reached, the commission has authorized itto close pursuant to Article III.h.7. of this compact, the host state of suchfacility has withdrawn from the compact or had its membership revoked, or thiscompact has been dissolved.
c. "Commission" means the Midwest Interstate Low-Level Radioactive WasteCommission.
d. "Compact facility" means a waste disposal facility that is locatedwithin the region and that is established by a party state pursuant to thedesignation of that state as a host state by the commission.
e. "Development" includes the characterization of potential sites for awaste disposal facility, siting of such a facility, licensing of such afacility, and other actions taken by a host state prior to the commencement ofconstruction of such a facility to fulfill its obligations as a host state.
f. "Disposal", with regard to low-level radioactive waste, means thepermanent isolation of that waste in accordance with the requirementsestablished by the United States Nuclear Regulatory Commission or thelicensing agreement state.
g. "Disposal plan" means the plan adopted by the commission for thedisposal of waste within the region.
h. "Facility" means a parcel of land or site, together with thestructures, 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 ofimprovements or installation of equipment is occurring for that purpose.
i. "Final decision" means a final action of the commission determiningthe legal rights, duties or privileges of any person. "Final decision" doesnot include preliminary, procedural or intermediate actions by the commission,actions regulating the internal administration of the commission, or actionsof the commission to enter into or refrain from entering into contracts oragreements with vendors to provide goods or services to the commission.
j. "Generator" means a person who first produces low-level radioactivewaste, including, without limitation, any person who does so in the course ofor incident to manufacturing, power generation, processing, waste treatment,waste storage, medical diagnosis and treatment, research, or other industrialor commercial activity. If the person who first produced an item or quantityof waste cannot be identified, "generator" means the person first possessingthe waste who can be identified.
k. "Host state" means any state which is designated by the commission tohost a compact facility or has hosted a compact facility.
l. "Long-term care" means those activities taken by a host state after acompact facility is permanently closed to ensure the protection of air, landand water resources and the health and safety of all people who may beaffected by the facility.
m. "Low-level radioactive waste" or "waste" means radioactive waste thatis not classified as high-level radioactive waste and that is class A, B, or Clow-level radioactive waste as defined in 10 CFR 61.55, as that sectionexisted on January 26, 1983. "Low-level radioactive waste" or "waste" doesnot include any such radioactive waste that is owned or generated by theUnited States Department of Energy; by the United States Navy as a result ofthe decommissioning of its vessels, or as a result of any research,development, testing or production of any atomic weapon.
n. "Operates", "operational", or "operating" means that the compactfacility with respect to which any of those terms is used accepts waste fordisposal.
o. "Party state" means any eligible state that enacts this compact intolaw, pays any eligibility fee established by the commission, and has notwithdrawn from this compact or had its membership in this compact revoked,provided that a state that has withdrawn from this compact or had itsmembership revoked again becomes a party state if it is readmitted tomembership in this compact pursuant to Article VIII.a. of this compact."Party state" includes any host state. "Party state" also includes anystatutorily created administrative departments, agencies or instrumentalitiesof a party state, but does not include municipal corporations, regional orlocal units of government or other political subdivisions of a party statethat are responsible for governmental activities on less than a statewidebasis.
p. "Person" means any individual, corporation, association, businessenterprise or other legal entity either public or private and any legalsuccessor, representative, agent or agency of that individual, corporation,association, business enterprise, or other legal entity. "Person" alsoincludes the United States, states, political subdivisions of states, and anydepartment, agency or instrumentality of the United States or a state.
q. "Region" means the area of the party states.
r. "Site" means the geographic location of a facility.
s. "State" means a state of the United States, the District of Columbia,the Commonwealth of Puerto Rico, the Virgin Islands or any other territorialpossession of the United States.
t. "Storage" means the temporary holding of waste.
u. "Treatment" means any method, technique or process, including storagefor radioactive decay, designed to change the physical, chemical or biologicalcharacteristics or composition of any waste in order to render the waste saferfor transport or management, amenable to recovery, convertible to anotherusable material or reduced in volume.
v. "Waste management", "manage waste", "management of waste","management", or "managed" means the storage, treatment, or disposal of waste.
ARTICLE III. THE COMMISSION
a. There is created the "Midwest Interstate Low-Level Radioactive WasteCommission". The commission consists of one voting member from each partystate. The governor of each party state shall notify the commission inwriting of its member and any alternates. An alternate may act on behalf ofthe member only in that member's absence. The method for selection and theexpenses of each commission member shall be the responsibility of the member'srespective state.
b. Each commission member is entitled to one vote. Except as otherwisespecifically provided in this compact, an action of the commission is bindingif a majority of the total membership casts its vote in the affirmative. Aparty state may direct its member or alternate member of the commission how tovote or not vote on matters before the commission.
c. The commission shall elect annually from among its members achairperson. The commission shall adopt and publish, in convenient form,bylaws, and policies which are not inconsistent with this compact, includingprocedures for the use of binding arbitration under Article VI.o. of thiscompact and procedures which substantially conform with the provisions of theFederal Administrative Procedure Act (5 U.S.C. sections 500 to 559) in regardto notice, conduct and recording of meetings; access by the public to records;provision of information to the public; conduct of adjudicatory hearings; andissuance of decisions.
d. The commission shall meet at least once annually and shall also meetupon the call of the chairperson or any other commission member.
e. All meetings of the commission shall be open to the public withreasonable advance notice. The commission may, by majority vote, close ameeting to the public for the purpose of considering sensitive personnel orlegal strategy matters. However, all commission actions and decisions shallbe made in open meetings and appropriately recorded.
f. The commission may establish advisory committees for the purpose ofadvising the commission on any matters pertaining to waste management.
g. The office of the commission shall be in a party state. Thecommission may appoint or contract for and compensate such limited staffnecessary to carry out its duties and functions. The staff shall have theresponsibilities and authority delegated to it by the commission in itsbylaws. The staff shall serve at the commission's pleasure with the exceptionthat staff hired as the result of securing federal funds shall be hired andgoverned under applicable federal statutes and regulations. In selecting anystaff, the commission shall assure that the staff has adequate experience andformal training to carry out the functions assigned to it by the commission.
h. The commission may do any or all of the following:
1. Appear as an intervenor or party in interest before any court of lawor any federal, state or local agency, board or commission in any matterrelated to waste management. In order to represent its views, the commissionmay arrange for any expert testimony, reports, evidence or otherparticipation.
2. Review any emergency closing of a compact facility, determine theappropriateness of that closing, and take whatever lawful actions arenecessary to ensure that the interests of the region are protected.
3. Take any action which is appropriate and necessary to perform itsduties and functions as provided in this compact.
4. Approve the disposal of naturally occurring and accelerator producedradioactive material at a compact facility. The commission shall not approvethe acceptance of such material without first making an explicit determinationof the effect of the new waste stream on the compact facility's maximumcapacity. Such approval requires the affirmative vote of a majority of thecommission, including the affirmative vote of the member from the host stateof the compact facility that would accept the material for disposal. Any suchhost state may, at any time, rescind its vote granting the approval and,thereafter, additional naturally occurring and accelerator producedradioactive material shall not be disposed of at a compact facility unless thedisposal is again approved. All provisions of this compact apply to thedisposal of naturally occurring and accelerator produced radioactive materialthat has been approved for disposal at a compact waste facility pursuant toArticle III.h.4. of this compact.
5. Enter into contracts in order to perform its duties and functions asprovided in this compact.
6. When approved by the commission, with the member from each host statein which an affected compact facility is operating or being developed orconstructed voting in the affirmative, enter into agreements to do any of thefollowing:
(a) Import for disposal within the region, waste generated outside theregion;
(b) Export for disposal outside the region, waste generated inside theregion;
(c) Dispose of waste generated within the region at a facility withinthe region that is not a compact facility.
7. Authorize a host state to permanently close a compact facilitylocated within its borders earlier than otherwise would be required by ArticleVI.i. of this compact. Such a closing requires the affirmative vote of amajority of the commission, including the affirmative vote of the member fromthe state in which the affected compact facility is located.
i. The commission shall do all of the following:
1. Submit an annual report to, and otherwise communicate with, thegovernors and the appropriate officers of the legislative bodies of the partystates regarding the activities of the commission.
2. Adopt and amend, by a two-thirds vote of the membership, inaccordance with the procedures and criteria developed pursuant to Article IVof this compact, a regional disposal plan which designates host states for theestablishment of needed compact facilities.
3. Adopt an annual budget.
4. Establish and implement a procedure for determining the capacity of acompact facility. The capacity of a compact facility shall be established assoon as reasonably practical after the host state of the facility isdesignated and shall not be changed thereafter without the consent of the hoststate. The capacity of a compact facility shall be based on the projectedvolume, radioactive characteristics, or both, of the waste to be disposed ofat the facility during the period set forth in Article VI.i. of this compact.
5. Provide a host state with funds necessary to pay reasonabledevelopment expenses incurred by the host state after it is designated to hosta compact facility.
6. Establish and implement procedures for making payments from theremedial action fund provided for in Article III.p. of this compact.
7. Establish and implement procedures to investigate any complaintjoined in by two or more party states regarding another party state'sperformance of its obligations under this compact.
8. Adopt policies promoting source reduction and the environmentallysound treatment of waste in order to minimize the amount of waste to bedisposed of at compact facilities.
9. Establish and implement procedures for obtaining information fromgenerators regarding the volume and characteristics of waste projected to bedisposed of at compact facilities and regarding generator activities withrespect to source reduction, recycling and treatment of waste.
10. Prepare annual reports regarding the volume and characteristics ofwaste projected to be disposed of at compact facilities.
j. Funding for the commission shall be provided as follows:
1. When no compact facility is operating, the commission may assess feesto be collected from generators of waste in the region. The fees shall bereasonable and equitable. The commission shall establish and implementprocedures for assessing and collecting the fees. The procedures may allowthe 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 wastein the region, generators paying the fees shall be reimbursed the amount ofthe fees, with reasonable interest, out of the revenues of operating compactfacilities.
2. When a compact facility is operating, funding for the commissionshall be provided through a surcharge collected by the host state as part ofthe fee system provided for in Article VI.j. of this compact. The surchargeto be collected by the host state shall be determined by the commission andshall be reasonable and equitable.
3. In the aggregate, the fees or surcharges, as the case may be, shallbe no more than is necessary to:
(a) Cover the annual budget of the commission;
(b) Provide a host state with the funds necessary to pay reasonabledevelopment expenses incurred by the host state after it is designated to hosta compact facility;
(c) Provide moneys for deposit in the remedial action fund establishedpursuant to Article III.p. of this compact; and
(d) Provide moneys to be added to an inadequately funded long-term carefund as provided in Article VI.o. of this compact.
k. Financial statements of the commission shall be prepared according togenerally accepted accounting principles. The commission shall contract withan independent certified public accountant to annually audit its financialstatements and to submit an audit report to the commission. The audit reportshall be made a part of the annual report of the commission required byArticle III of this compact.
l. The commission may accept for any of its purposes and functions andmay utilize and dispose of any donations, grants of money, equipment,supplies, materials and services from any state or the United States or anysubdivision 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 commissiontogether with the identity of the donor, grantor or lender, shall be detailedin the annual report of the commission.
m. The commission is a legal entity separate and distinct from the partystates. Members of the commission and its employees are not personally liablefor actions taken by them in their official capacity. The commission is notliable or otherwise responsible for any costs, expenses or liabilitiesresulting from the development, construction, operation, regulation, closingor long-term care of any compact facility or any noncompact facility madeavailable to the region by any contract or agreement entered into by thecommission under Article III.h.6. of this compact. Nothing in Article III.m.of this compact relieves the commission of its obligations under Article IIIof this compact or under contracts to which it is a party. Any liabilities ofthe commission are not liabilities of the party states.
n. Final decisions of the commission shall be made, and shall be subjectto judicial review, in accordance with all of the following conditions:
1. Every final decision shall be made at an open meeting of thecommission. Before making a final decision, the commission shall provide anopportunity for public comment on the matter to be decided. Each finaldecision shall be reduced to writing and shall set forth the commission'sreasons for making the decision.
2. Before making a final decision, the commission may conduct anadjudicatory hearing on the proposed decision.
3. Judicial review of a final decision shall be initiated by filing apetition in the United States District Court for the district in which theperson seeking the review resides or in which the commission's office islocated not later than sixty days after issuance of the commission's writtendecision. Concurrently with filing the petition for review with the court,the petitioner shall serve a copy of the petition on the commission. Withinfive days after receiving a copy of the petition, the commission shall mail acopy of it to each party state and to all other persons who have notified thecommission of their desire to receive copies of such petitions. Any failureof the commission to so mail copies of the petition does not affect thejurisdiction of the reviewing court. Except as otherwise provided in ArticleIII.n.3. of this compact, standing to obtain judicial review of finaldecisions of the commission and the form and scope of the review are subjectto and governed by 5 U.S.C.A. 706.
4. If a party state seeks judicial review of a final decision of thecommission that does any of the following, the facts shall be subject to trialde novo by the reviewing court unless trial de novo of the facts isaffirmatively waived in writing by the party state:
(a) Imposes financial penalties on a party state;
(b) Suspends the right of a party state to have waste generated withinits borders disposed of at a compact facility or at a noncompact facility madeavailable to the region by an agreement entered into by the commission underArticle III.h.6. of this compact;
(c) Terminates the designation of a party state as a host state;
(d) Revokes the membership of a party state in this compact;
(e) Establishes the amounts of money that a party state that haswithdrawn from this compact or had its membership in this compact revoked isrequired to pay under article VIII.e. of this compact. Any such trial de novo of the facts shall be governed by the Federal Rules ofCivil Procedure and the Federal Rules of Evidence.
5. Preliminary, procedural or intermediate actions by the commissionthat precede a final decision are subject to review only in conjunction withreview of the final decision.
6. Except as provided in Article III.n.5. of this compact, actions ofthe commission that are not final decisions are not subject to judicialreview.
o. Unless approved by a majority of the commission, with the member fromeach host state in which an affected compact facility is operating or is beingdeveloped or constructed voting in the affirmative, no person shall do any ofthe following:
1. Import waste generated outside the region for management within theregion;
2. Export waste generated within the region for disposal outside theregion;
3. Manage waste generated outside the region at a facility within theregion;
4. Dispose of waste generated within the region at a facility within theregion that is not a compact facility.
p. The commission shall establish a remedial action fund to pay thecosts of reasonable remedial actions taken by a party state if an eventresults from the development, construction, operation, closing or long-termcare of a compact facility that poses a threat to human health, safety orwelfare or to the environment. The amount of the remedial action fund shallbe adequate to pay the costs of all reasonably foreseeable remedial actions.A party state shall notify the commission as soon as reasonably practicalafter the occurrence of any event that may require the party state to take aremedial action. The failure of a party state to so notify the commissiondoes not limit the rights of the party state under Article III.p. of thiscompact. If the moneys in the remedial action fund are inadequate to pay thecosts of reasonable remedial actions, the amount of the deficiency is aliability with respect to which generators shall provide indemnification underArticle VII.g. of this compact. Generators who provide the requiredindemnification have the rights of contribution provided in Article VII.g. ofthis compact. Article III.p. of this compact applies to any remedial actiontaken by a party state regardless of whether the party state takes theremedial action on its own initiative or because it is required to do so by acourt or regulatory agency of competent jurisdiction.
q. If the commission makes payment from* the remedial action fundprovided for in Article III.p. of this compact, the commission is entitled toobtain reimbursement under applicable rules of law from any person who isresponsible for the event giving rise to the remedial action. Suchreimbursement may be obtained from a party state only if the event giving riseto the remedial action resulted from the activities of that party state as agenerator of waste.
r. If this compact is dissolved, all moneys held by the commission shallbe used first to pay for any ongoing or reasonably anticipated remedialactions. Any remaining moneys shall be distributed in a fair and equitablemanner to those party states that have operating or closed compact facilitieswithin their borders and shall be added to the long-term care funds maintainedby those party states.
ARTICLE IV. REGIONAL DISPOSAL PLAN
The commission shall adopt and periodically update a regional disposalplan designed to ensure the safe and efficient disposal of waste generatedwithin the region. In adopting a regional waste disposal plan, the commissionshall do all of the following:
a. Adopt procedures for determining, consistent with considerations forpublic health and safety, the type and number of compact facilities which arepresently necessary and which are projected to be necessary to dispose ofwaste generated within the region;
b. Develop and adopt procedures and criteria for identifying a partystate as a host state for a compact facility. In developing these criteria,the commission shall consider all of the following:
1. The health, safety, and welfare of the citizens of the party states;
2. The existence of compact facilities within each party state;
3. The minimization of waste transportation;
4. The volumes and types of wastes generated within each party state;
5. The environmental impacts on the air, land and water resources of theparty states; and
6. The economic impacts on the party states.
c. Conduct such hearings, and obtain such reports, studies, evidence andtestimony required by its approved procedures prior to identifying a partystate as a host state for a needed compact facility;
d. Prepare a draft disposal plan and any update thereof, includingprocedures, criteria and host states, which shall be made available in aconvenient form to the public for comment. Upon the request of a party state,the commission shall conduct a public hearing in that state prior to theadoption or update of the disposal plan. The disposal plan and any updatethereof shall include the commission's response to public and party statecomment.
ARTICLE V. RIGHTS AND OBLIGATIONS OF PARTY STATES
a. Each party state shall act in good faith in the performance of actsand courses of conduct which are intended to ensure the provision offacilities for regional availability and usage in a manner consistent withthis compact.
b. Except for waste attributable to radioactive material or wasteimported into the region in order to render the material or waste amenable totransportation, storage, disposal or recovery, or in order to convert thewaste or material to another usable material, or to reduce it in volume orotherwise treat it, each party state has the right to have all wastesgenerated within its borders disposed of at compact facilities subject to thepayment of all fees established by the host state under Article VI.j. of thiscompact and to the provisions contained in Articles VI.l., VI.s., VIII.d.,IX.d. and X of this compact. All party states have an equal right of accessto any facility made available to the region by any agreement entered into bythe commission pursuant to Article III.h.6. of this compact, subject to theprovisions of Articles VI.l., VI.s., VIII.d. and X of this compact.
c. If a party state's right to have waste generated within its bordersdisposed of at compact facilities, or at any noncompact facility madeavailable to the region by an agreement entered into by the commission underArticle III.h.6. of this compact, is suspended, no waste generated within itsborders by any person shall be disposed of at any such facility during theperiod of the suspension.
d. To the extent permitted by federal law, each party state may enforceany applicable federal and state laws, regulations and rules pertaining to thepackaging and transportation of waste generated within or passing through itsborders. Nothing in this section shall be construed to require a party stateto enter into any agreement with the United States Nuclear RegulatoryCommission.
e. Each party state shall provide to the commission any data andinformation the commission requires to implement its responsibilities. Eachparty state shall establish the capability to obtain any data and informationrequired by the commission.
f. If, notwithstanding the sovereign immunity provision in ArticleVII.f.1. and the indemnification provided for in Articles III.p., VI.o. andVII.g. of this compact, a party state incurs a cost as a result of aninadequate remedial action fund of an exhausted long-term care fund, or incursa liability as a result of an action described in Article VII.f.1. and notdescribed in Article VII.f.2. of this compact, the cost or liability shall bethe pro rata obligation of each party state and each state that has withdrawnfrom this compact or had its membership in this compact revoked. Thecommission shall determine each state's pro rata obligation in a fair andequitable manner based on the amount of waste from each such state that hasbeen or is projected to be disposed of at the compact facility with respect towhich the cost or liability to be shared was incurred. No state shall beobligated to pay the pro rata obligation of any other state. The pro rata obligations provided for in Article V.f. of this compact do notresult in the creation of state debt. Rather, the pro rata obligations arecontractual obligations that shall be enforced by only the commission or anaffected party state.
g. If the party states make payment pursuant to Article V.f. of thiscompact, the surcharge or fee provided for in Article III.j. of this compactshall be used to collect the funds necessary to reimburse the party states forthose payments. The commission shall determine the time period over whichreimbursement shall take place. ARTICLE VI. DEVELOPMENT, OPERATION AND CLOSING OF COMPACT FACILITIES
a. Any party state may volunteer to become a host state, and thecommission may designate that state as a host state.
b. If not all compact facilities required by the regional disposal planare not developed pursuant to Article VI.a. of this compact, the commissionmay designate a host state.
c. After a state is designated a host state by the commission, it isresponsible for the timely development and operation of the compact facilityit is designated to host. The development and operation of the compactfacility shall not conflict with applicable federal and host state laws, rulesand regulations, provided that the laws, rules and regulations of a host stateand its political subdivisions shall not prevent, nor shall they be applied soas to prevent, the host state's discharge of the obligation set forth inArticle VI.c. of this compact. The obligation set forth in Article VI.c. ofthis compact is contingent upon the discharge by the commission of itsobligation set forth in Article III.i.5. of this compact.
d. If a party state designated as a host state fails to discharge theobligations imposed upon it by Article VI.c. of this compact, its host statedesignation may be terminated by a two-thirds vote of the commission with themember from the host state of any then operating compact facility voting inthe affirmative. A party state whose host state designation has beenterminated has failed to fulfill its obligations as a host state and issubject to the provisions of Article VIII.d. of this compact.
e. Any party state designated as a host state may request the commissionto relieve that state of the responsibility to serve as a host state. Exceptas set forth in Article IV.d. of this compact, the commission may relieve aparty state of its responsibility only upon a showing by the requesting partystate that, based upon criteria established by the commission that areconsistent with any applicable federal criteria, no feasible potential compactfacility site exists within its borders. A party state relieved of its hoststate responsibility shall repay to the commission any funds provided to thatstate by the commission for the development of a compact facility, and alsoshall pay to the commission the amount the commission determines is necessaryto ensure that the commission and the other party states do not incurfinancial loss as a result of the state being relieved of its host stateresponsibility. Any funds so paid to the commission with respect to thefinancial loss of the other party states shall be distributed forthwith by thecommission to the party states that would otherwise incur the loss. Inaddition, until the state relieved of its responsibility is again designatedas a host state and a compact facility located in that state begins operating,it shall annually pay to the commission, for deposit in the remedial actionfund, an amount the commission determines is fair and equitable in light ofthe fact the state has been relieved of the responsibility to host a compactfacility, but continues to enjoy the benefits of being a member of thiscompact.
f. The host state shall select the technology for the compact facility.If requested by the commission, information regarding the technology selectedby the host state shall be submitted to the commission for its review. Thecommission may require the host state to make changes in the technologyselected by the host state if the commission demonstrates that the changes donot decrease the protection of air, land and water resources and the healthand safety of all people who may be affected by the facility. If requested bythe host state, any commission decision requiring the host state to makechanges in the technology shall be preceded by an adjudicatory hearing inwhich the commission shall have the burden of proof.
g. A host state may assign to a private contractor the responsibility,in whole or in part, to develop, construct, operate, close or providelong-term care for a compact facility. Assignment of such responsibility by ahost state to a private contractor does not relieve the host state of anyresponsibility imposed upon it by this compact. A host state may secureindemnification from the contractor for any costs, liabilities and expensesincurred by the host state resulting from the development, construction,operation, closing or long-term care of a compact facility.
h. To the extent permitted by federal and state law, a host state shallregulate and license any facility within its borders and ensure the long-termcare of that facility.
i. A host state shall accept waste for disposal for a period of twentyyears from the date the compact facility in the host state becomesoperational, or until its capacity has been reached, whichever occurs first.At any time before the compact facility closes, the host state and thecommission may enter into an agreement to extend the period during which thehost state is required to accept such waste or to increase the capacity of thecompact facility. Except as specifically authorized by Article VI.l.4. ofthis compact, the twenty-year period shall not be extended, and the capacityof the facility shall not be increased, without the consent of the affectedhost state and the commission.
j. A host state shall establish a system of fees to be collected fromthe users of any compact facility within its borders. The fee system, and thecosts paid through the system, shall be reasonable and equitable. The feesystem shall be subject to the commission's approval. The fee system shallprovide the host state with sufficient revenue to pay costs associated withthe compact facility, including, but not limited to, operation, closing,long-term care, debt service, legal costs, local impact assistance and localfinancial incentives. The fee system also shall be used to collect thesurcharge provided in Article III.j.2. of this compact. The fee system shallinclude incentives for source reduction and shall be based on the hazard ofthe waste as well as the volume.
k. A host state shall ensure that a compact facility located within itsborders that is permanently closed is properly cared for so as to ensureprotection of air, land and water resources and the health and safety of allpeople who may be affected by the facility.
l. The development of subsequent compact facilities shall be as follows:
1. No compact facility shall begin operating until the commissiondesignates the host state of the next compact facility.
2. The following actions shall be taken by the state designated to hostthe next compact facility within the specified number of years after thecompact facility it is intended to replace begins operation:
(a) Within three years, enact legislation providing for the developmentof the next compact facility;
(b) Within seven years, initiate site characterization investigationsand tests to determine licensing suitability for the next compact facility;
(c) Within eleven years, submit a license application for the nextcompact facility that the responsible licensing authority deems complete. If a host state fails to take any of these actions within the specified time,all waste generated by any person within that state shall be denied access tothe then operating compact facility, and to any noncompact facility madeavailable to the region by any agreement entered into by the commissionpursuant to Article III.h.6. of this compact, until the action is taken.Denial of access may be rescinded by the commission, with the member from thehost state of the then operating compact facility voting in the affirmative.A host state that fails to take any of these actions within the specified timehas failed to fulfill its obligations as a host state and is subject to theprovisions of Articles VI.d. and VIII.d. of this compact.
3. Within fourteen years after any compact facility begins operating,the state designated to host the next compact facility shall have obtained alicense from the responsible licensing authority to construct and operate thecompact facility the state has been designated to host. If the license is notobtained within the specified time, all waste generated by any person withinthe state designated to host the next compact facility shall be denied accessto the then operating compact facility, and to any noncompact facility madeavailable to the region by any agreement entered into by the commissionpursuant to Article III.h.6. of this compact, until the license is obtained.The state designated to host the next compact facility shall have failed inits obligations as a host state and shall be subject to Articles VI.d. andVIII.d. of this compact. In addition, at the sole option of the host state ofthe then operating compact facility, all waste generated by any person withinany party state that has not fully discharged its obligations under ArticleVI.i. of this compact shall be denied access to the then operating compactfacility, and to any noncompact facility made available to the region by anyagreement entered into by the commission pursuant to Article III.h.6. of thiscompact, until the license is obtained. Denial of access may be rescinded bythe commission, with the member from the host state of the then operatingcompact facility voting in the affirmative.
4. If twenty years after a compact facility begins operating, the nextcompact facility is not ready to begin operating, the state designated to hostthe next compact facility shall have failed in its obligation as a host stateand shall be subject to Articles VI.d. and VIII.d. of this compact. If at thetime the capacity of the then operating compact facility has been reached, ortwenty years after the facility began operating, whichever occurs first, thenext compact facility is not ready to begin operating, the host state of thethen operating compact facility, without the consent of any other party stateor the commission, may continue to operate the facility until a compactfacility in the next host state is ready to begin operating. During any suchperiod of continued operation of a compact facility, all waste generated byany person within the state designated to host the next compact facility shallbe denied access to the then operating compact facility and to any noncompactfacility made available to the region by any agreement entered into by thecommission pursuant to Article III.h.6. of this compact. In addition, duringsuch period, at the sole option of the host state of the then operatingcompact facility, all waste generated by any person within any party statethat has not fully discharged its obligations under Article VI.i. of thiscompact shall be denied access to the then operating compact facility and toany noncompact facility made available to the region by any agreement enteredinto by the commission pursuant to Article III.h.6. of this compact. Denialof access may be rescinded by the commission, with the member from the hoststate of the then operating compact facility voting in the affirmative. Theprovisions of Article VI.l.4. of this compact shall not apply if theirapplication is inconsistent with an agreement between the host state of thethen operating compact facility and the commission as authorized in ArticleVI.i. of this compact, or inconsistent with Article VI.p. or q. of thiscompact.
5. During any period that access is denied for waste disposal pursuantto Article VI.l.2.3. or 4. of this compact, the party state designated to hostthe next compact disposal facility shall pay to the host state of the thenoperating compact facility an amount the commission determines is reasonablynecessary to ensure that the host state, or any agency or politicalsubdivision thereof, does not incur financial loss as a result of the denialof access.
6. The commission may modify any of the requirements contained inArticles VI.l.2. and 3. of this compact if it finds that circumstances havechanged so that the requirements are unworkable or unnecessarily rigid or nolonger serve to ensure the timely development of a compact facility. Thecommission may adopt such a finding by a two-thirds vote, with the member fromthe host state of the then operating compact facility voting in theaffirmative.
m. This compact shall not prevent an emergency closing of a compactfacility by a host state to protect air, land and water resources and thehealth and safety of all people who may be affected by the facility. A hoststate that has an emergency closing of a compact facility shall notify thecommission in writing within three working days of its action and shall,within thirty working days of its action, demonstrate justification for theclosing.
n. A party state that has fully discharged its obligations under ArticleVI.i. of this compact shall not again be designated a host state of a compactfacility without its consent until each party state has been designated tohost a compact facility and has fully discharged its obligations under ArticleVI.i. of this compact or has been relieved under Article VI.e. of this compactof its responsibility to serve as a host state.
o. Each host state of a compact facility shall establish a long-termcare fund to pay for monitoring, security, maintenance and repair of thefacility after it is permanently closed. The expenses of administering thelong-term care fund shall be paid out of the fund. The fee system establishedby the host state that establishes a long-term care fund shall be used tocollect moneys in amounts that are adequate to pay for all long-term care ofthe compact facility. The moneys shall be deposited into the long-term carefund. Except where the matter is resolved through arbitration, the amount tobe collected through the fee system for deposit into the fund shall bedetermined through an agreement between the commission and the host stateestablishing the fund. Not less than three years, nor more than five years,before the compact facility it is designated to host is scheduled to beginoperating, the host state shall propose to the commission the amount to becollected through the fee system for deposit into the fund. If, one hundredeighty days after such proposal is made to the commission, the host state andthe commission have not agreed, either the commission or the host state mayrequire the matter to be decided through binding arbitration. The method ofadministration of the fund shall be determined by the host state establishingthe long-term care fund, provided that moneys in the fund shall be used onlyfor the purposes set forth in Article VI.o. of this compact and shall beinvested in accordance with the standards applicable to trustees under thelaws of the host state establishing the fund. If, after a compact facility isclosed, the commission determines the long-term care fund established withrespect to that facility is not adequate to pay for all long-term care forthat facility, the commission shall collect and pay over to the host state ofthe closed facility, for deposit into the long-term care fund, an amountdetermined by the commission to be necessary to make the amount in the fundadequate to pay for all long-term care of the facility. If a long-term carefund is exhausted and long-term care expenses for the facility with respect towhich the fund was created have been reasonably incurred by the host state ofthe facility, those expenses are a liability with respect to which generatorsshall provide indemnification as provided in Article VII.g. of this compact.Generators that provide indemnification shall have contribution rights asprovided in Article VII.g. of this compact.
p. A host state that withdraws from the compact or has its membershiprevoked shall immediately and permanently close any compact facility locatedwithin its borders, except that the commission and a host state may enter intoan agreement under which the host state may continue to operate, as anoncompact facility, a facility within its borders that, before the host statewithdrew or had its membership revoked, was a compact facility.
q. If this compact is dissolved, the host state of any then operatingcompact facility shall immediately and permanently close the facility,provided that a host state may continue to operate a compact facility orresume operating a previously closed compact facility, as a noncompactfacility, subject to all of the following requirements:
1. The host state shall pay to the other party states the portion of thefunds provided to that state by the commission for the development,construction, operation, closing or long-term care of a compact facility thatis fair and equitable, taking into consideration the period of time thecompact facility located in that state was in operation and the amount ofwaste disposed of at the facility, provided that a host state that has fullydischarged its obligations under Article VI.i. of this compact shall not berequired to make such payment;
2. The host state shall physically segregate waste disposed of at thefacility after this compact is dissolved from waste disposed of at thefacility before this compact is dissolved;
3. The host state shall indemnify and hold harmless the other partystates from all costs, liabilities and expenses, including reasonableattorneys' fees and expenses, caused by operating the facility after thiscompact is dissolved, provided that this indemnification and hold harmlessobligation shall not apply to costs, liabilities and expenses resulting fromthe activities of a host state as a generator of waste;
4. Moneys in the long-term care fund established by the host state thatare attributable to the operation of the facility before this compact isdissolved, and investment earnings thereon, shall be used only to pay the costof monitoring, securing, maintaining or repairing that portion of the facilityused for the disposal of waste before this compact is dissolved. Such moneysand investment earnings, and any moneys added to the long-term care fundthrough a distribution authorized by Article III.r. of this compact, also maybe used to pay the cost of any remedial action made necessary by an eventresulting from the disposal of waste at the facility before this compact isdissolved.
r. Financial statements of a compact facility shall be preparedaccording to generally accepted accounting principles. The commission mayrequire the financial statements to be audited on an annual basis by a firm ofcertified public accountants selected and paid by the commission.
s. Waste may be accepted for disposal at a compact facility only if thegenerator of the waste has signed, and there is on file with the commission,an agreement to provide indemnification to a party state, or employee of thatstate, for all of the following:
1. Any cost of a remedial action described in Article III.p. of thiscompact that, due to inadequacy of the remedial action fund, is not paid asset forth in that provision;
2. Any expense for long-term care described in Article VI.o. of thiscompact that, due to exhaustion of the long-term care fund, is not paid as setforth in that provision;
3. Any liability for damages to persons, property or the environmentincurred by a party state, or employee of that state while acting within thescope of employment, resulting from the development, construction, operation,regulation, closing or long-term of a compact facility, or any noncompactfacility made available to the region by any agreement entered into by thecommission pursuant to Article III.h.6. of this compact, or any other matterarising from this compact. The agreement also shall require generators toindemnify the party state or employee against all reasonable attorneys' feesand expenses incurred in defending any action for such damages. Thisindemnification shall not extend to liability based on any of the following:
(a) The activities of the party states as generators of waste;
(b) The obligations of the party states to each other and the commissionimposed by this compact or other contracts related to the disposal of wasteunder this compact;
(c) Activities of a host state or employees thereof that are grosslynegligent or willful and wanton. The agreement shall provide that the indemnification obligation of generatorsshall be joint and several, except that the indemnification obligation of theparty states with respect to their activities as generators of waste shall notbe joint and several, but instead shall be prorated according to the amount ofwaste that each state had disposed of at the compact facility giving rise tothe liability. Such proration shall be calculated as of the date of the eventgiving rise to the liability. The agreement shall be in a form approved bythe commission with the member from the host state of any then operatingcompact facility voting in the affirmative. Among generators there shall berights of contribution based on equitable principles, and generators shallhave rights of contribution against any other person responsible for suchdamages under common law, statute, rule or regulation, provided that a partystate that through its own activities did not generate any waste disposed ofat the compact facility giving rise to the liability, an employee of such aparty state, and the commission shall have no such contribution obligation.The commission may waive the requirement that the party state sign and filesuch an indemnification agreement as a condition to being able to dispose ofwaste generated as a result of the party state's activities. Such a waivershall not relieve a party state of the indemnification obligation imposed byArticle VII.g. of this compact.
ARTICLE VII. OTHER LAWS AND REGULATIONS
a. Nothing in this compact:
1. Abrogates or limits the applicability of any act of the Congress ordiminishes or otherwise impairs the jurisdiction of any federal agencyexpressly conferred thereon by the Congress;
2. Prevents the enforcement of any other law of a party state which isnot inconsistent with this compact;
3. Prohibits any generator from storing or treating, on its ownpremises, waste generated by it within the region;
4. Affects any administrative or judicial proceeding pending on theeffective date of this compact;
5. Alters the relations between and the respective internalresponsibility of the government of a party state and its subdivisions;
6. Affects the generation, treatment, storage or disposal of wastegenerated by the atomic energy defense activities of the Secretary of theUnited States Department of Energy, or successor agencies, or federal researchand development activities as described in 42 U.S.C. 2021;
7. Affects the rights and powers of any party state or its politicalsubdivisions, to the extent not inconsistent with this compact, to regulateand license any facility or the transportation of waste within its borders;
8. Requires a party state to enter into any agreement with the UnitedStates Nuclear Regulatory Commission; or
9. Limits, expands or otherwise affects the authority of a state toregulate low-level radioactive waste classified by any agency of the UnitedStates government as "below regulatory concern" or otherwise exempt fromfederal regulation.
b. If a court of the United States finally determines that a law of aparty state conflicts with this compact, this compact shall prevail to theextent of the conflict. The commission shall not commence an action seekingsuch a judicial determination unless commencement of the action is approved bya two-thirds vote of the membership of the commission.
c. Except as authorized by this compact, no law, rule or regulation of aparty state or of any of its subdivisions or instrumentalities may be appliedin a manner which discriminates against the generators of another party state.
d. Except as provided in Articles III.m. and VII.f. of this compact, noprovision of this compact shall be construed to eliminate or reduce in any waythe liability or responsibility, whether arising under common law, statute,rule or regulation, of any person for penalties, fines or damages to persons,property or the environment resulting from the development, construction,operation, closing or long-term care of a compact facility, or any noncompactfacility made available to the region by any agreement entered into by thecommission pursuant to Article III.h.6. of this compact, or any other matterarising from this compact. The provisions of this compact shall not alterotherwise applicable laws relating to compensation of employees for workplaceinjuries.
e. Except as provided in 28 U.S.C. 1251(A), the district courts of theUnited States have exclusive jurisdiction to decide cases arising under thiscompact. Article VII.e. of this compact does not apply to proceedings withinthe jurisdiction of state or federal regulatory agencies nor to judicialreview of proceedings before state or federal regulatory agencies. ArticleVII.e. of this compact shall not be construed to diminish other laws of theUnited States conferring jurisdiction on the courts of the United States.
f. For the purposes of activities pursuant to this compact, thesovereign immunity of party states and employees of party states shall be asfollows:
1. A party state or employee thereof, while acting within the scope ofemployment, shall not be subject to suit or held liable for damages topersons, property or the environment resulting from the development,construction, operation, regulation, closing or long-term care of a compactfacility, or any noncompact facility made available to the region by anyagreement entered into by the commission pursuant to Article III.h.6. of thiscompact. This applies whether the claimed liability of the party state oremployee is based on common law, statute, rule or regulation.
2. The sovereign immunity granted in Article VII.f.1. of this compactdoes not apply to any of the following:
(a) Actions based upon the activities of the party states as generatorsof waste. With regard to those actions, the sovereign immunity of the partystates shall not be affected by this compact.
(b) Actions based on the obligations of the party states to each otherand the commission imposed by this compact, or other contracts related to thedisposal of waste under this compact. With regard to those actions, the partystates shall have no sovereign immunity.
(c) Actions against a host state, or employee thereof, when the hoststate or employee acted in a grossly negligent or willful and wanton manner.
g. If in any action described in Article VII.f.1. and not described inArticle VII.f.2. of this compact, it is determined that, notwithstandingArticle VII.f.1. of this compact, a party state, or employee of that state whoacted within the scope of employment, is liable for damages or has liabilityfor other matters arising under this compact as described in Article VI.s.3.of this compact, the generators who caused waste to be placed at the compactfacility with respect to which the liability was incurred shall indemnify theparty state or employee against that liability. Those generators also shallindemnify the party state or employee against all reasonable attorney's feesand expenses incurred in defending against any such action. Theindemnification obligation of generators under Article VII.g. of this compactshall be joint and several, except that the indemnification obligation ofparty states with respect to their activities as generators of waste shall notbe joint and several, but instead shall be prorated according to the amount ofwaste each state has disposed of at the compact facility giving rise to theliability. Among generators, there shall be rights of contribution based uponequitable principles, and generators shall have rights of contribution againstany other person responsible for such damages under common law, statute, ruleor regulation. A party state that through its own activities did not generateany waste disposed of at the compact facility giving rise to the liability, anemployee of such a party state, and the commission shall have no contributionobligation under Article VII.g. of this compact. Article VII.g. of thiscompact shall not be construed as a waiver of the sovereign immunity providedfor in Article VII.f.1. of this compact.
h. The sovereign immunity of a party state provided for in ArticleVII.f.1. of this compact shall not be extended to any private contractorassigned responsibilities as authorized in Article VI.g. of this compact.
ARTICLE VIII. ELIGIBLE PARTIES, WITHDRAWAL,
REVOCATION, SUSPENSION OF ACCESS, ENTRY INTO
FORCE AND TERMINATION
a. Any state may petition the commission to be eligible for membershipin the compact. The commission may establish appropriate eligibilityrequirements. These requirements may include, but are not limited to, aneligibility fee or designation as a host state. A petitioning state becomeseligible for membership in the compact upon the approval of the commission,including the affirmative vote of the member from each host state in which acompact facility is operating or being developed or constructed. Any statebecoming eligible upon the approval of the commission becomes a member of thecompact when the state enacts this compact into law and pays the eligibilityfee established by the commission.
b. The commission is formed upon the appointment of commission membersand the tender of the membership fee payable to the commission by three partystates. The governor of the first state to enact this compact shall convenethe initial meeting of the commission. The commission shall cause legislationto be introduced in the Congress which grants the consent of the Congress tothis compact, and shall take action necessary to organize the commission andimplement the provision of this compact.
c. A party state that has fully discharged its obligations under ArticleVI.i. of this compact, or has been relieved under Article VI.e. of thiscompact of its responsibilities to serve as a host state, may withdraw fromthis compact by repealing the authorizing legislation and by receiving theunanimous consent of the commission. Withdrawal takes effect on the datespecified in the commission resolution consenting to withdrawal. All legalrights of the withdrawn state established under this compact, including, butnot limited to, the right to have waste generated within its borders disposedof at compact facilities, cease upon the effective date of withdrawal, but anylegal obligations of that party state under this compact, including, but notlimited to, those set forth in Article VIII.e. of this compact continue untilthey are fulfilled.
d. Any party state that fails to comply with the terms of this compactor fails to fulfill its obligations may have reasonable financial penaltiesimposed against it, the right to have waste generated within its bordersdisposed of at compact facilities, or any noncompact facility made availableto the region by any agreement entered into by the commission pursuant toArticle III.h.6. of this compact suspended or its membership in the compactrevoked by a two-thirds vote of the commission, provided that the membershipof the party state designated to host the next compact facility shall not berevoked unless the member from the host state of any then operating compactfacility votes in the affirmative. Revocation takes effect on the datespecified in the resolution revoking the party state's membership. All legalrights of the revoked party state established under this compact, including,but not limited to, the right to have waste generated within its bordersdisposed of at compact facilities, cease upon the effective date ofrevocation, but any legal obligations of that party state under this compact,including, but not limited to, those set forth in Article VIII.e. of thiscompact, continue until they are fulfilled. The chairperson of the commissionshall transmit written notice of a revocation of a party state's