3747.01 Midwest interstate compact on low-level radioactive waste.

This version of section 3747.01 of the Revised Code is operative until the immediately following version of the section becomes operative.

The "midwest interstate compact on low-level radioactive waste" is hereby ratified, enacted into law, and entered into by the state of Ohio as a party thereto with any other state which has legally joined the compact as follows:

MIDWEST INTERSTATE COMPACT ON LOW-LEVEL RADIOACTIVE WASTE

ARTICLE I POLICY AND PURPOSE

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, 42 U.S.C. 2021 , has provided for and encouraged the development of low-level radioactive waste compacts as a tool for managing such waste. The party states acknowledge that 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 management 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 manage such waste be properly provided.

(A) It is the policy of the party states to enter into a regional low-level radioactive waste management compact for the purpose of:

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

(2) Providing sufficient facilities for the proper management of low-level radioactive 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 and efficiently manage low-level radioactive waste generated in the region;

(5) Encouraging the reduction of the amounts of low-level radioactive waste generated in the region;

(6) Distributing the costs, benefits, and obligations of successful low-level radioactive waste management equitably among the party states and among generators and other persons who use regional facilities to manage their waste; and

(7) Ensuring the ecological and economical management of low-level radioactive wastes.

(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:

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

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

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

ARTICLE II DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

(A) "Care" means the continued observation of a facility after closure for the purposes of detecting a need for maintenance, ensuring environmental safety, and determining compliance with applicable licensure and regulatory requirements and including the correction of problems which are detected as a result of that observation.

(B) "Commission" means the midwest interstate low-level radioactive waste commission.

(C) "Decommissioning" means the measures taken at the end of a facility's operating life to assure the continued protection of the public from any residual radioactivity or other potential hazards present at a facility.

(D) "Disposal" means the isolation of waste from the biosphere in a permanent facility designed for that purpose.

(E) "Eligible state" means a state qualified to be a party state to this compact as provided in Article VIII of this compact.

(F) "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 used or is being developed for the treatment, storage, or disposal of low-level radioactive waste.

(G) "Generator" means a person who produces or possesses low-level radioactive waste in the course of or incident to manufacturing, power generation, processing, medical diagnosis and treatment, research, or other industrial or commercial activity and who, to the extent required by law, is licensed by the United States nuclear regulatory commission or a party state to produce or possess such waste. "Generator" does not include a person who provides a service by arranging for the collection, transportation, treatment, storage, or disposal of wastes generated outside the region.

(H) "Host state" means any state which is designated by the commission to host a regional facility.

(I) "Low-level radioactive waste" or "waste" means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by-product material as defined in Section 11(e)(2) of the "Atomic Energy Act of 1954."

(J) "Management plan" means the plan adopted by the commission for the storage, transportation, treatment, and disposal of waste within the region.

(K) "Party state" means any eligible state which enacts the compact into law.

(L) "Person" means any individual, corporation, business enterprise, or other legal entity either public or private and any legal successor, representative, agent or agency of that individual, corporation, business enterprise, or legal entity.

(M) "Region" means the area of the party states.

(N) "Regional facility" means a facility which is located within the region and which is established by a party state pursuant to designation of that state as a host state by the commission.

(O) "Site" means the geographic location of a facility.

(P) "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.

(Q) "Storage" means the temporary holding of waste for treatment or disposal.

(R) "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.

(S) "Waste management" means the storage, transportation, treatment, or disposal of waste.

ARTICLE III THE COMMISSION

(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.

(B) Each commission member is entitled to one vote. No action of the commission is binding unless a majority of the total membership cast their vote in the affirmative.

(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 which substantially conform with the provisions of the federal administrative procedure act, 5 U.S.C. 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.

(D) The commission shall meet at least once annually and shall also meet upon the call of the chairperson or a commission member.

(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.

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

(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 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.

(H) The commission may:

(1) Enter into an agreement with any person, state, or group of states for the right to use regional facilities for waste generated outside of the region and for the right to use facilities outside the region for waste generated within the region. The right of any person to use a regional facility for waste generated outside of the region requires an affirmative vote of a majority of the commission, including the affirmative vote of the member of the host state in which any affected regional facility is located.

(2) Approve the disposal of waste generated within the region at a facility other than a regional facility;

(3) 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.

(4) Review the emergency closure of a regional facility, determine the appropriateness of that closure, and take whatever actions are necessary to ensure that the interests of the region are protected;

(5) Take any action which is appropriate and necessary to perform its duties and functions as provided in this compact; and

(6) Suspend the privileges or revoke the membership of a party state by a two-thirds vote of the membership in accordance with Article VIII of this compact.

(I) The commission shall:

(1) Receive and act on the petition of a non-party state to become an eligible state;

(2) 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 commision commission;

(3) Hear, negotiate, and, as necessary, resolve by final decision disputes which may arise between the party states regarding this compact;

(4) Adopt and amend, by a two-thirds vote of the membership, in accordance with the procedures and criteria developed pursuant to Article IV of this compact, a regional management plan which designates host states for the establishment of needed regional facilities; and

(5) Adopt an annual budget.

(J) Funding of the budget of the commission shall be provided as follows:

(1) Each state, upon becoming a party state, shall pay fifty thousand dollars or one thousand dollars per cubic meter shipped from that state in 1980, whichever is lower, to the commission, which shall be used for the administrative costs of the commission.

(2) Each state hosting a regional facility shall levy surcharges on all users of the regional facility based upon its portion of the total volume and characteristics of wastes managed at that facility. The surcharges collected at all regional facilities shall:

(a) Be sufficient to cover the annual budget of the commission;

(b) Represent the financial commitments of all party states to the commission;

(c) Be paid to the commission, provided, however, that each host state collecting surcharges may retain a portion of the collection sufficient to cover its administrative costs of collection, and that the remainder be sufficient only to cover the approved annual budget of the commission.

(K) The commission shall keep accurate accounts of all receipts and disbursements. The commission shall contract with an independent certified public accountant to annually audit all receipts and disbursements of commission funds, 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 article.

(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.

(M) The commission is not liable for any costs associated with any of the following:

(1) The licensing and construction of any facility;

(2) The operation of any facility;

(3) The stabilization and closure of any facility;

(4) The care of any facility;

(5) The extended institutional control, after care of any facility; or

(6) The transportation of waste to any facility.

(N)

(1) The commission is a legal entity separate and distinct from the party states and is liable for its actions as a separate and distinct legal entity. Liabilities of the commission are not liabilities of the party states. Members of the commission are not personally liable for actions taken by them in their official capacity.

(2) Except as provided under paragraphs (M) and (N)(1) of this article, nothing in this compact alters liability for any act, omission, course of conduct, or liability resulting from any causal or other relationships.

(O) Any person aggrieved by a final decision of the commission may obtain judicial review of such decision in any court of jurisdiction by filing in such court a petition for review within sixty days after the commission's final decision.

ARTICLE IV REGIONAL MANAGEMENT PLAN

The commission shall adopt a regional management plan designed to ensure the safe and efficient management of waste generated within the region. In adopting a regional waste management plan the commission shall:

(A) Adopt procedures for determining, consistent with considerations for public health and safety, the type and number of regional facilities which are presently necessary and which are projected to be necessary to manage waste generated within the region;

(B) Develop and consider policies promoting source reduction of waste generated within the region;

(C) Develop and adopt procedures and criteria for identifying a party state as a host state for a regional facility. In developing these criteria, the commission shall consider all the following:

(1) The health, safety, and welfare of the citizens of the party states;

(2) The existence of regional facilities within each party state;

(3) The minimization of waste transportation;

(4) The volumes and types of wastes generated within each party state; and

(5) The environmental, economic, and ecological impacts on the air, land, and water resources of the party states.

(D) Conduct such hearings, and obtain such reports, studies, evidence, and testimony required by its approved procedures prior to identifying a party state as a host state for a needed regional facility; and

(E) Prepare a draft management plan, including procedures, criteria and host states, including alternatives, which shall be made available in a convenient 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 the adoption of the management plan. The management plan shall include the commission's response to public and party state comment.

ARTICLE V RIGHTS AND OBLIGATIONS OF PARTY STATES

(A) Each party state shall act in good faith in the performance of acts and courses of conduct which are intended to ensure the provision of facilities for regional availability and usage in a manner consistent with this compact.

(B) Each party state has the right to have all wastes generated within its borders managed at regional facilities subject to the provisions contained in Article IX(C) of this compact. All party states have an equal right of access to any facility made available to the region by any agreement entered into by the commission pursuant to Article III of this compact.

(C) Party states or generators may negotiate for the right of access to a facility outside the region and may export waste outside the region subject to commission approval under Article III of this compact.

(D) To the extent permitted by federal law, each party state may enforce any applicable federal and state laws, regulations, and rules pertaining to the packaging and transportation of waste generated within or passing through its borders. Nothing in this section shall be construed to require a party state to enter into any agreement with the United States nuclear regulatory commission.

(E) Each party state shall provide to the commission any data and information the commission requires to implement its responsibilities. Each party state shall establish the capability to obtain any data and information required by the commission.

ARTICLE VI DEVELOPMENT AND OPERATION OF FACILITIES

(A) Any party state may volunteer to become a host state, and the commission may designate that state as a host state upon a two-thirds vote of its members.

(B) If all regional facilities required by the regional management plan are not developed pursuant to paragraph (A) of this article, or upon notification that an existing regional facility will be closed, the commission may designate a host state.

(C) Each party state designated as a host state is responsible for determining possible facility locations within its borders. The selection of a facility site shall not conflict with applicable federal and host state laws, regulations, and rules not inconsistent with this compact and shall be based on factors including, but not limited to, geological, environmental, and economic viability of possible facility locations.

(D) Any party state designated as a host state may request the commission to relieve that state of the responsibility to serve as a host state. The commission may relieve a party state of this responsibility only upon a showing by the requesting party state that no feasible potential regional facility site of the type it is designated to host exists within its borders.

(E) After a state is designated a host state by the commission, it is responsible for the timely develoment development and operation of a regional facility.

(F) To the extent permitted by federal and state law, a host state shall regulate and license any facility within its borders and ensure the extended care of that facility.

(G) The commission may designate a party state as a host state while a regional facility is in operation if the commission determines that an additional regional facility is or may be required to meet the needs of the region. The commission shall make this designation following the procedures established under Article IV of this compact.

(H) Designation of a host state is for a period of twenty years or the life of the regional facility which is established under that designation, whichever is longer. Upon request of a host state, the commission may modify the period of its designation.

(I) A host state may establish a fee system for any regional facility within its borders. The fee system shall be reasonable and equitable. This fee system shall provide the host state with sufficient revenue to cover any costs, including but not limited to the planning, siting, licensure, operation, decommissioning, extended care, and long-term liability, associated with such facilities. This fee system may also include reasonable revenue beyond the costs incurred for the host state, subject to approval by the commission. A host state shall submit an annual financial audit of the operation of the regional facility to the commission. The fee system may include incentives for source reduction and may be based on the hazard of the waste as well as the volume.

(J) A host state shall ensure that a regional facility located within its borders which is permanently closed is properly decommissioned. A host state shall also provide for the care of a closed or decommissioned regional facility within its borders so that the public health and safety of the state and region are ensured.

(K) A host state intending to close a regional facility located within its borders shall notify the commission in writing of its intention and the reasons. Notification shall be given to the commission at least five years prior to the intended date of closure. This section shall not prevent an emergency closing of a regional facility by a host state to protect its air, land, and water resources and the health and safety of its citizens. However, a host state which has an emergency closing of a regional facility shall notify the commission in writing within three working days of its action and shall, within thirty working days of its action, demonstrate justification for the closing.

(L) If a regional facility closes before an additional or new facility becomes operational, waste generated within the region may be shipped temporarily to any location agreed on by the commission until a regional facility is operational.

(M) A party state which is designated as a host state by the commission and fails to fulfill its obligations as a host state may have its privileges under the compact suspended or membership in the compact revoked by the commission.

ARTICLE VII OTHER LAWS AND REGULATIONS

(A) Nothing in this compact:

(1) Abrogates or limits the applicability of any act of congress or diminishes or otherwise impairs the jurisdiction of any federal agency expressly conferred thereon by the congress;

(2) Prevents the enforcement of any other law of a party state which is not inconsistent with this compact;

(3) Prohibits any storage or treatment of waste by the generator on its own premises;

(4) Affects any administrative or judicial proceeding pending on the effective date of this compact;

(5) Alters the relations between and the respective internal responsibility of the government of a party state and its subdivisions;

(6) Affects the generation, treatment, storage, or disposal of waste generated by the atomic energy defense activities of the secretary of the United States department of energy or successor agencies or federal research and development activities as defined in 42 U.S.C. 2021 ;

(7) Affects the rights and powers of any party state or its political subdivisions to the extent not inconsistent with this compact, to regulate and license any facility or the transportation of waste within its borders or affects the rights and powers of any party state or its political subdivisions to tax or impose fees on the waste managed at any facility within its borders;

(8) Requires a party state to enter into any agreement with the United States nuclear regulatory commission; or

(9) Alters or limits liability of transporters of waste or owners and operators of sites for their acts, omissions, conduct, or relationships in accordance with applicable laws.

(B) For purposes of this compact, all state laws or parts of laws in conflict with this compact are hereby superseded to the extent of the conflict.

(C) No law, rule, or regulation of a party state or of any of its subdivisions or instrumentalities may be applied in a manner which discriminates against the generators of another party state.

ARTICLE VIII ELIGIBLE PARTIES, WITHDRAWAL, REVOCATION, ENTRY INTO FORCE, TERMINATION

(A) Eligible parties to this compact are the states of Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Virginia, and Wisconsin. Eligibility terminates on July 1, 1984.

(B) Any state not eligible for membership in the compact may petition the commission for eligibility. The commission may establish appropriate eligibility requirements. These requirements may include, but are not limited to, an eligibility fee or designation as a host state. A petitioning state becomes eligible for membership in the compact upon the approval of the commission, including the affirmative vote of all host states. Any state becoming eligible upon the approval of the commission becomes a member of the compact in the same manner as any state eligible for membership at the time this compact enters into force.

(C) An eligible state becomes a party state when the state enacts the compact into law and pays the membership fee required in Article III(J)(1) of this compact.

(D) The commission is formed upon the appointment of commission members and the tender of the membership fee payable to the commission by three party states. The governor of the first state to enact this compact shall convene the initial meeting of the commission. The commission shall cause legislation to be introduced in congress which grants the consent of congress to this compact, and shall take action necessary to organize the commission and implement the provisions of this compact.

(E) Any party state may withdraw from this compact by repealing the authorizing legislation but no withdrawal may take effect until five years after the governor of the withdrawing state gives notice in writing of the withdrawal to the commission and to the governor of each party state. Withdrawal does not affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal. Any host state which grants a disposal permit for waste generated in a withdrawing state shall void the permit when the withdrawal of that state is effective.

(F) Any party state which fails to comply with the terms of this compact or fails to fulfill its obligations may have its privileges suspended or its membership in the compact revoked by the commission in accordance with Article III(H)(6) of this compact. Revocation takes effect one year from the date the affected party state receives written notice from the commission of its action. All legal rights of the affected party state established under this compact cease upon the effective date of revocation but any legal obligations of that party state arising prior to revocation continue until they are fulfilled. The chairperson of the commission shall transmit written notice of a revocation of a party state's membership in the compact immediately following the vote of the commission to the governor of the affected party state, all other governors of the party states and the congress of the United States.

(G) This compact becomes effective July 1, 1983, or at any date subsequent to July 1, 1983, upon enactment by at least three eligible states. However, Article IX(B) of this compact shall not take effect until congress has by law consented to this compact. The congress shall have an opportunity to withdraw such consent every five years. Failure of congress to affirmatively withdraw its consent has the effect of renewing consent for an additional five-year period. The consent given to this compact by congress shall extend to any future admittance of new party states under divisions (B) and (C) of this article and to the power of the region to ban the shipment of waste from the region pursuant to Article III of this compact.

(H) The withdrawal of a party state from this compact under division (E) of this article or the revocation of a state's membership in this compact under division (F) of this article does not affect the applicability of this compact to the remaining party states.

(I) A state which has been designated by the commission to be a host state has ninety days from receipt by the governor of written notice of designation to withdraw from the compact without any right to receive refund of any funds already paid pursuant to this compact, and without any further payment. Withdrawal becomes effective immediately upon notice as provided in division (E) of this article. A designated host state which withdraws from the compact after ninety days and prior to fulfilling its obligations shall be assessed a sum the commission determines to be necessary to cover the costs borne by the commission and remaining party states as a result of that withdrawal.

ARTICLE IX PENALTIES

(A) Each party state shall prescribe and enforce penalties against any person who is not an official of another state for violation of any provision of this compact.

(B) Unless otherwise authorized by the commission pursuant to Article III(H) of this compact, after January 1, 1986, it is a violation of this compact:

(1) For any person to deposit at a regional facility waste not generated within the region;

(2) For any regional facility to accept waste not generated within the region;

(3) For any person to export from the region waste which is generated within the region; or

(4) For any person to dispose of waste at a facility other than a regional facility.

(C) Each party state acknowledges that the receipt by a host state of waste packaged or transported in violation of applicable laws, rules, and regulations may result in the imposition of sanctions by the host state which may include suspension or revocation of the violator's right of access to the facility in the host state.

(D) Each party state has the right to seek legal recourse against any party state which acts in violation of this compact.

ARTICLE X SEVERABILITY AND CONSTRUCTION

The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared by a court of competent jurisdiction to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If any provision of this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the state affected as to all severable matters.

This version of section 3747.01 of the Revised Code from 1995 SB19 09-08-1995 does not become operative until the amendments to the Midwest Interstate Compact on Low-Level Radioactive Waste contained in the section have been enacted by all party states to the Compact and, if necessary, consented to by the United States Congress pursuant to Article VIII(G) of the Compact. At that time, this version of the section will replace the immediately preceding version of the section.

The "midwest interstate compact on low-level radioactive waste" is hereby ratified, enacted into law, and entered into by the state of Ohio as a party thereto with any other state which has legally joined the compact as follows:

MIDWEST INTERSTATE COMPACT

ON LOW-LEVEL RADIOACTIVE WASTE

ARTICLE I

POLICY AND PURPOSE

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 U.S.C. 2021b to j, 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.

(A) It is the policy of the party states to enter into a regional low-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-level radioactive 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 and efficiently dispose of low-level radioactive waste generated in the region;

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

(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;

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

(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;

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

(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:

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

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

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

ARTICLE II

DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

(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 including the correction of problems which are detected as a result of that observation.

(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 twenty years or a longer period of time as authorized by Article VI(I) of this compact, its capacity has been reached, the commission has authorized it to close pursuant to Article III(H)(7) of this compact, the host state of such facility has withdrawn from the compact or had its membership revoked, or this compact has been dissolved.

(C) "Commission" means the midwest interstate low-level radioactive waste commission.

(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.

(E) "Development" includes the characterization of potential sites for a waste disposal facility, siting of such a facility, licensing of such state prior to the commencement of construction of such a facility to fulfill its obligations as a host state.

(F) "Disposal," with regard to low-level radioactive waste, means the permanent isolation of that waste in accordance with the requirements established by the United States nuclear regulatory commission or the licensing agreement state.

(G) "Disposal plan" means the plan adopted by the commission for the disposal of waste within the region.

(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.

(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.

(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.

(K) "Host state" means any state which is designated by the commission to host a compact facility or has hosted a compact facility.

(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.

(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 C.F.R. 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 United States department of energy; by the United States 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.

(N) "Operates," "operational," or "operating" means that the compact facility with respect to which any of those terms is used accepts waste for disposal.

(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 Article VIII(A) of this compact. "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.

(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.

(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 territorial possession of the United States.

(T) "Storage" means the temporary holding of waste.

(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.

(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 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.

(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 vote on matters before the commission.

(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 Article VI(O) of this compact and procedures which substantially conform with the provisions of "The Federal Administrative Procedure Act," 5 U.S.C. 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.

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

(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.

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

(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.

(H) The commission may do any or all of the following:

(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.

(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;

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

(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 Article III(H)(4) of this compact.

(5) Enter into contracts in order to perform its duties and functions as provided in this compact;

(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:

(a) Import for disposal within the region, waste generated outside the region;

(b) Export for disposal outside the region, waste generated inside the region;

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

(7) Authorize a host state to permanently close a compact facility located within its borders earlier than otherwise would be required by Article VI(I) of this compact. 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.

(I) The commission shall do all of the following:

(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;

(2) Adopt and amend, by a two-thirds vote of the membership, in accordance with the procedures and criteria developed pursuant to Article IV of this compact, a regional disposal plan which designates host states for the establishment of needed compact facilities;

(3) Adopt an annual budget;

(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, radioactive characteristics, or both, of the waste to be disposed of at the facility during the period set forth in Article VI(I) of this compact.

(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;

(6) Establish and implement procedures for making payments from the remedial action fund provided for in Article III(P) of this compact;

(7) Establish and implement procedures to investigate any complaint joined in by two or more party states regarding another party state's performance of its obligations under this compact;

(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;

(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;

(10) Prepare annual reports regarding the volume and characteristics of waste 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 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.

(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 Article VI(J) of this compact. The surcharge to be collected by the host state shall be determined by the commission and shall be reasonable and equitable.

(3) In the aggregate, the fees or surcharges, as the case may be, shall be 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 reasonable development expenses incurred by the host state after it is designated to host a compact facility;

(c) Provide moneys for deposit in the remedial action fund established pursuant to Article III(P) of this compact;

(d) Provide moneys to be added to an inadequately funded long-term care fund as provided in Article VI(O) of this compact.

(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 Article III of this compact.

(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.

(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 Article III(H)(6) of this compact. Nothing in Article III(M) of this compact relieves the commission of its obligations under Article III of this compact or under contracts to which it is a party. Any liabilities of the commission are not liabilities of the party states.

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

(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.

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

(3) Judicial review of a final decision shall be initiated by filing a petition in the United States 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 sixty 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 five 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 Article III(N)(3) of this compact, 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 U.S.C.A. 706 .

(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:

(a) Imposes financial penalties on a party state;

(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 Article 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 has withdrawn from this compact or had its membership in this compact revoked is required to pay under Article VIII(E) of this compact.

Any such trial de novo of the facts shall be governed by the federal Rules of Civil Procedure and the federal Rules of Evidence.

(5) Preliminary, procedural, or intermediate actions by the commission that precede a final decision are subject to review only in conjunction with review of the final decision.

(6) Except as provided in Article III(N)(5) of this compact, actions of the commission that are not final decisions are not subject to judicial review.

(O) Unless approved by a majority of the commission, with the member from each host state in which an affected compact facility is operating or is being developed or constructed voting in the affirmative, no person shall do any of the following:

(1) Import waste generated outside the region for management within the region;

(2) Export waste generated within the region for disposal outside the region;

(3) Manage waste generated outside the region at a facility within the region;

(4) Dispose of waste generated within the region at a facility within the region that is not a compact facility.

(P) The commission shall establish a remedial action fund to pay the costs of reasonable remedial actions taken by a party state if an event results from the development, construction, operation, closing, or long-term care of a compact facility that poses a threat to human health, safety, or welfare or to the environment. The amount of the remedial action fund shall be adequate to pay the costs of all reasonably foreseeable remedial actions. A party state shall notify the commission as soon as reasonably practical after the occurrence of any event that may require the party state to take a remedial action. The failure of a party state to so notify the commission does not limit the rights of the party state under Article III(P) of this compact.

If the moneys in the remedial action fund are inadequate to pay the costs of reasonable remedial actions, the amount of the deficiency is a liability with respect to which generators shall provide indemnification under Article VII(G) of this compact. Generators who provide the required indemnification have the rights of contribution provided in Article VII(G) of this compact. Article III(P) of this compact applies to any remedial action taken by a party state regardless of whether the party state takes the remedial action on its own initiative or because it is required to do so by a court or regulatory agency of competent jurisdiction.

(Q) If the commission makes payment from the remedial action fund provided for in Article III(P) of this compact, the commission is entitled to obtain reimbursement under applicable rules of law from any person who is responsible for the event giving rise to the remedial action. Such reimbursement may be obtained from a party state only if the event giving rise to the remedial action resulted from the activities of that party state as a generator of waste.

(R) If this compact is dissolved, all moneys held by the commission shall be used first to pay for any ongoing or reasonably anticipated remedial actions. Any remaining moneys shall be distributed in a fair and equitable manner to those party states that have operating or closed compact facilities within their borders and shall be added to the long-term care funds maintained by those party states.

ARTICLE IV

REGIONAL DISPOSAL PLAN

The commission shall adopt and periodically update a regional disposal plan designed to ensure the safe and efficient disposal of waste generated within the region. In adopting a regional waste disposal plan, the commission shall do all of the following:

(A) Adopt procedures for determining, consistent with considerations for public health and safety, the type and number of compact facilities which are presently necessary and which are projected to be necessary to dispose of waste generated within the region;

(B) Develop and adopt procedures and criteria for identifying a party state 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 projected to be generated within each party state;

(5) The environmental impacts on the air, land, and water resources of the party states;

(6) The economic impacts on the party states.

(C) Conduct such hearings, and obtain such reports, studies, evidence, and testimony required by its approved procedures prior to identifying a party state as a host state for a needed compact facility;

(D) Prepare a draft disposal plan and any update thereof, including procedures, criteria, and host states, which shall be made available in a convenient 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 the adoption or update of the disposal plan. The disposal plan and any update thereof shall include the commission's response to public and party state comment.

ARTICLE V

RIGHTS AND OBLIGATIONS OF

PARTY STATES

(A) Each party state shall act in good faith in the performance of acts and courses of conduct which are intended to ensure the provision of facilities for regional availability and usage in a manner consistent with this compact.

(B) Except for waste attributable to radioactive material or waste imported into the region in order to render the material or waste amenable to transportation, storage, disposal, or recovery, or in order to convert the waste or material to another usable material, or to reduce it in volume or otherwise treat it, each party state has the right to have all wastes generated within its borders disposed of at compact facilities subject to the payment of all fees established by the host state under Article VI(J) of this compact 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 access to any facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact, subject to the provisions of Articles VI(S), VIII(D), and X of this compact.

(C) If a party state's right to have waste generated within its borders disposed of at compact facilities, or at any noncompact facility made available to the region by an agreement entered into by the commission under Article III(H)(6) of this compact, is suspended, no waste generated within its borders by any person shall be disposed of at any such facility during the period of the suspension.

(D) To the extent permitted by federal law, each party state may enforce any applicable federal and state laws, regulations, and rules pertaining to the packaging and transportation of waste generated within or passing through its borders. Nothing in this section shall be construed to require a party state to enter into any agreement with the United States nuclear regulatory commission.

(E) Each party state shall provide to the commission any data and information the commission requires to implement its responsibilities. Each party state shall establish the capability to obtain any data and information required by the commission.

(F) If, notwithstanding the sovereign immunity provision in Article VII(F)(1) and the indemnification provided for in Articles III(P), VI(O), and VII(G) of this compact, a party state incurs a cost as a result of an inadequate remedial action fund or an exhausted long-term care fund, or incurs a liability as a result of an action described in Article VII(F)(1) and not described in Article VII(F)(2) of this compact, the cost or liability shall be the pro rata obligation of each party state and each state that has withdrawn from this compact or had its membership in this compact revoked. The commission shall determine each state's pro rata obligation in a fair and equitable manner based on the amount of waste from each such state that has been or is projected to be disposed of at the compact facility with respect to which the cost or liability to be shared was incurred. No state shall be obligated to pay the pro rata obligation of any other state.

The pro rata obligations provided for in Article V(F) of this compact do not result in the creation of state debt. Rather, the pro rata obligations are contractual obligations that shall be enforced by only the commission or an affected party state.

(G) If the party states make payment pursuant to Article V(F) of this compact, the surcharge or fee provided for in Article III(J) of this compact shall be used to collect the funds necessary to reimburse the party states for those payments. The commission shall determine the time period over which reimbursement shall take place.

ARTICLE VI

DEVELOPMENT, OPERATION, AND

CLOSING OF COMPACT FACILITIES

(A) Any party state may volunteer to become a host state, and the commission may designate that state as a host state.

(B) If not all compact facilities required by the regional disposal plan are developed pursuant to Article VI(A) of this compact, the commission may designate a host state.

(C) After a state is designated a host state by the commission, it is responsible for the timely development and operation of the compact facility it is designated to host. The development and operation of the compact facility shall not conflict with applicable federal and host state laws, rules, and regulations, provided that the laws, rules, and regulations of a host state and its political subdivisions shall not prevent, nor shall they be applied so as to prevent, the host state's discharge of the obligation set forth in Article VI(C) of this compact. The obligation set forth in Article VI(C) of this compact is contingent upon the discharge by the commission of its obligation set forth in Article III(I)(5) of this compact.

(D) If a party state designated as a host state fails to discharge the obligations imposed upon it by Article VI(C) of this compact, its host state designation may be terminated by a two-thirds vote of the commission with the member from the host state of any then operating compact facility voting in the affirmative. A party state whose host state designation has been terminated has failed to fulfill its obligations as a host state and is subject to the provisions of Article VIII(D) of this compact.

(E) Any party state designated as a host state may request the commission to relieve that state of the responsibility to serve as a host state. Except as set forth in Article VI(D) of this compact, the commission may relieve a party state of its responsibility only upon a showing by the requesting party state that, based upon criteria established by the commission that are consistent with any applicable federal criteria, no feasible potential compact facility site exists within its borders. A party state relieved of its host state responsibility shall repay to the commission any funds provided to that state by the commission for the development of a compact facility, and also shall pay to the commission the amount the commission determines is necessary to ensure that the commission and the other party states do not incur financial loss as a result of the state being relieved of its host state responsibility. Any funds so paid to the commission with respect to the financial loss of the other party states shall be distributed forthwith by the commission to the party states that would otherwise incur the loss. In addition, until the state relieved of its responsibility is again designated as 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 action fund, an amount the commission determines is fair and equitable in light of the fact the state has been relieved of the responsibility to host a compact facility, but continues to enjoy the benefits of being a member of this compact.

(F) The host state shall select the technology for the compact facility. If requested by the commission, information regarding the technology selected by the host state shall be submitted to the commission for its review. The commission may require the host state to make changes in the technology selected by the host state if the commission demonstrates that the changes do not decrease the protection of air, land, and water resources and the health and safety of all people who may be affected by the facility. If requested by the host state, any commission decision requiring the host state to make changes in the technology shall be preceded by an adjudicatory hearing in which 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 provide long-term care for a compact facility. Assignment of such responsibility by a host state to a private contractor does not relieve the host state of any responsibility imposed upon it by this compact. A host state may secure indemnification from the contractor for any costs, liabilities, and expenses incurred 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 shall regulate and license any facility within its borders and ensure the long-term care of that facility.

(I) A host state shall accept waste for disposal for a period of twenty years from the date the compact facility in the host state becomes operational, or until its capacity has been reached, whichever occurs first. At any time before the compact facility closes, the host state and the commission may enter into an agreement to extend the period during which the host state is required to accept such waste or to increase the capacity of the compact facility. Except as specifically authorized by Article VI(L)(4) of this compact, the twenty-year period shall not be extended, and the capacity of the facility shall not be increased, without the consent of the affected host state and the commission.

(J) A host state shall establish a system of fees to be collected from the users of any compact facility within its borders. The fee system, and the costs paid through the system, shall be reasonable and equitable. The fee system shall be subject to the commission's approval. The fee system shall provide the host state with sufficient revenue to pay costs associated with the compact facility, including, but not limited to, operation, closing, long-term care, debt service, legal costs, local impact assistance, and local financial incentives. The fee system also shall be used to collect the surcharge provided in Article III(J)(2) of this compact. The fee system shall include incentives for source reduction and shall be based on the hazard of the waste as well as the volume.

(K) A host state shall ensure that a compact facility located within its borders that is permanently closed is properly cared for so as to ensure protection of air, land, and water resources and the health and safety of all people 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 commission designates the host state of the next compact facility.

(2) The following actions shall be taken by the state designated to host the next compact facility within the specified number of years after the compact facility it is intended to replace begins operation:

(a) Within three years, enact legislation providing for the development of the next compact facility;

(b) Within seven years, initiate site characterization investigations and tests to determine licensing suitability for the next compact facility;

(c) Within eleven years, submit a license application for the next compact 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 to the then operating compact facility, and to any noncompact facility made available to the region by any agreement entered into by the commission pursuant 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 the host 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 time has failed to fulfill its obligations as a host state and is subject to the provisions 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 a license from the responsible licensing authority to construct and operate the compact facility the state has been designated to host. If the license is not obtained within the specified time, all waste generated by any person within the state designated to host the next compact facility shall be denied access to the then operating compact facility, and to any noncompact facility made available to the region by any agreement entered into by the commission pursuant 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 in its obligations as a host state and shall be subject to Articles VI(D) and VIII(D) of this compact. In addition, at the sole option of the host state of the then operating compact facility, all waste generated by any person within any party state that has not fully discharged its obligations under Article VI(I) of this compact shall be denied access to the then operating compact facility, and to any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact, until the license is obtained. Denial of access may be rescinded by the commission, with the member from the host state of the then operating compact facility voting in the affirmative.

(4) If twenty years after a compact facility begins operating, the next compact facility is not ready to begin operating, the state designated to host the next compact facility shall have failed in its obligation as a host state and shall be subject to Articles VI(D) and VIII(D) of this compact. If at the time the capacity of the then operating compact facility has been reached, or twenty years after the facility began operating, whichever occurs first, the next compact facility is not ready to begin operating, the host state of the then operating compact facility, without the consent of any other party state or the commission, may continue to operate the facility until a compact facility in the next host state is ready to begin operating. During any such period of continued operation of a compact facility, all waste generated by any person within the state designated to host the next compact facility shall be denied access to the then operating compact facility and to any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact. In addition, during such period, at the sole option of the host state of the then operating compact facility, all waste generated by any person within any party state that has not fully discharged its obligations under Article VI(I) of this compact shall be denied access to the then operating compact facility and to any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact. Denial of access may be rescinded by the commission, with the member from the host state of the then operating compact facility voting in the affirmative. The provisions of Article VI(L)(4) of this compact shall not apply if their application is inconsistent with an agreement between the host state of the then operating compact facility and the commission as authorized in Article VI(I) of this compact, or inconsistent with Article VI(P) or (Q) of this compact.

(5) During any period that access is denied for waste disposal pursuant to Article VI(L)(2), (3), or (4) of this compact, the party state designated to host the next compact disposal facility shall pay to the host state of the then operating compact facility an amount the commission determines is reasonably necessary to ensure that the host state, or any agency or political subdivision thereof, does not incur financial loss as a result of the denial of access.

(6) The commission may modify any of the requirements contained in Articles VI(L)(2) and (3) of this compact if it finds that circumstances have changed so that the requirements are unworkable or unnecessarily rigid or no longer serve to ensure the timely development of a compact facility. The commission may adopt such a finding by a two-thirds vote, with the member from the host state of the then operating compact facility voting in the affirmative.

(M) This compact shall not prevent an emergency closing of a compact facility by a host state to protect air, land, and water resources and the health and safety of all people who may be affected by the facility. A host state that has an emergency closing of a compact facility shall notify the commission in writing within three working days of its action and shall, within thirty working days of its action, demonstrate justification for the closing.

(N) A party state that has fully discharged its obligations under Article VI(I) of this compact shall not again be designated a host state of a compact facility without its consent until each party state has been designated to host a compact facility and has fully discharged its obligations under Article VI(I) of this compact or has been relieved under Article VI(E) of this compact of its responsibility to serve as a host state.

(O) Each host state of a compact facility shall establish a long-term care fund to pay for monitoring, security, maintenance and repair of the facility after it is permanently closed. The expenses of administering the long-term care fund shall be paid out of the fund. The fee system established by the host state that establishes a long-term care fund shall be used to collect moneys in amounts that are adequate to pay for all long-term care of the compact facility. The moneys shall be deposited into the long-term care fund. Except where the matter is resolved through arbitration, the amount to be collected through the fee system for deposit into the fund shall be determined through an agreement between the commission and the host state establishing the fund. Not less than three years, nor more than five years, before the compact facility it is designated to host is scheduled to begin operating, the host state shall propose to the commission the amount to be collected through the fee system for deposit into the fund. If, one hundred eighty days after such proposal is made to the commission, the host state and the commission have not agreed, either the commission or the host state may require the matter to be decided through binding arbitration. The method of administration of the fund shall be determined by the host state establishing the long-term care fund, provided that moneys in the fund shall be used only for the purposes set forth in Article VI(O) of this compact and shall be invested in accordance with the standards applicable to trustees under the laws of the host state establishing the fund. If, after a compact facility is closed, the commission determines the long-term care fund established with respect to that facility is not adequate to pay for all long-term care for that facility, the commission shall collect and pay over to the host state of the closed facility, for deposit into the long-term care fund, an amount determined by the commission to be necessary to make the amount in the fund adequate to pay for all long-term care of the facility. If a long-term care fund is exhausted and long-term care expenses for the facility with respect to which the fund was created have been reasonably incurred by the host state of the facility, those expenses are a liability with respect to which generators shall provide indemnification as provided in Article VII(G) of this compact. Generators that provide indemnification shall have contribution rights as provided in Article VII(G) of this compact.

(P) A host state that withdraws from the compact or has its membership revoked shall immediately and permanently close any compact facility located within its borders, except that the commission and a host state may enter into an agreement under which the host state may continue to operate, as a noncompact facility, a facility within its borders that, before the host state withdrew or had its membership revoked, was a compact facility.

(Q) If this compact is dissolved, the host state of any then operating compact facility shall immediately and permanently close the facility, provided that a host state may continue to operate a compact facility or resume operating a previously closed compact facility, as a noncompact facility, subject to all of the following requirements:

(1) The host state shall pay to the other party states the portion of the funds provided to that state by the commission for the development, construction, operation, closing, or a long-term care of a compact facility that is fair and equitable, taking into consideration the period of time the compact facility located in that state was in operation and the amount of waste disposed of at the facility, provided that a host state that has fully discharged its obligations under Article VI(I) of this compact shall not be required to make such payment;

(2) The host state shall physically segregate waste disposed of at the facility after this compact is dissolved from waste disposed of at the facility before this compact is dissolved;

(3) The host state shall indemnify and hold harmless the other party states from all costs, liabilities, and expenses, including reasonable attorneys' fees and expenses, caused by operating the facility after this compact is dissolved, provided that this indemnification and hold harmless obligation shall not apply to costs, liabilities, and expenses resulting from the activities of a host state as a generator of waste;

(4) Moneys in the long-term care fund established by the host state that are attributable to the operation of the facility before this compact is dissolved, and investment earnings thereon, shall be used only to pay the cost of monitoring, securing, maintaining, or repairing that portion of the facility used for the disposal of waste before this compact is dissolved. Such moneys and investment earnings, and any moneys added to the long-term care fund through a distribution authorized by Article III(R) of this compact, also may be used to pay the cost of any remedial action made necessary by an event resulting from the disposal of waste at the facility before the compact is dissolved.

(R) Financial statements of a compact facility shall be prepared according to generally accepted accounting principles. The commission may require the financial statements to be audited on an annual basis by a firm of certified public accountants selected and paid by the commission.

(S) Waste may be accepted for disposal at a compact facility only if the generator 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 that state, for all of the following:

(1) Any cost of a remedial action described in Article III(P) of this compact that, due to inadequacy of the remedial action fund, is not paid as set forth in that provision;

(2) Any expense for long-term care described in Article VI(O) of this compact that, due to exhaustion of the long-term care fund, is not paid as set forth in that provision;

(3) Any liability for damages to persons, property, or the environment incurred by a party state, or employee of that state while acting within the scope of employment, resulting from the development, construction, operation, regulation, closing, or long-term care of a compact facility, or any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact, or any other matter arising from this compact. The agreement also shall require generators to indemnify the party state or employee against all reasonable attorney's fees and expenses incurred in defending any action for such damages. This indemnification 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 commission imposed by this compact or other contracts related to the disposal of waste under this compact;

(c) Activities of a host state or employees thereof that are grossly negligent or willful and wanton.

The agreement shall provide that the indemnification obligation of generators shall be joint and several, except that the indemnification obligation of the party states with respect to their activities as generators of waste shall not be joint and several, but instead shall be prorated according to the amount of waste that each state had disposed of at the compact facility giving rise to the liability. Such proration shall be calculated as of the date of the event giving rise to the liability. The agreement shall be in a form approved by the commission with the member from the host state of any then operating compact facility voting in the affirmative. Among generators there shall be rights of contribution based on equitable principles, and generators shall have rights of contribution against any other person responsible for such damages under common law, statute, rule, or regulation, provided that a party state that through its own activities did not generate any waste disposed of at the compact facility giving rise to the liability, an employee of such a party state, and the commission shall have no such contribution obligation. The commission may waive the requirement that the party state sign and file such an indemnification agreement as a condition to being able to dispose of waste generated as a result of the party state's activities. Such a waiver shall not relieve a party state of the indemnification obligation imposed by Article 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 or diminishes or otherwise impairs the jurisdiction of any federal agency expressly conferred thereon by the congress;

(2) Prevents the enforcement of any other law of a party state which is not inconsistent with this compact;

(3) Prohibits any generator from storing or treating, on its own premises, waste generated by it within the region;

(4) Affects any administrative or judicial proceeding pending on the effective date of this compact;

(5) Alters the relations between and the respective internal responsibility of the government of a party state and its subdivisions;

(6) Affects the generation, treatment, storage, or disposal of waste generated by the atomic energy defense activities of the secretary of the United States department of energy or successor agencies or federal research and development activities as described in 42 U.S.C. 2021 ;

(7) Affects the rights and powers of any party state or its political subdivisions, to the extent not inconsistent with this compact, to regulate and license any facility or the transportation of waste within its borders;

(8) Requires a party state to enter into any agreement with the United States nuclear regulatory commission;

(9) Limits, expands, or otherwise affects the authority of a state to regulate low-level radioactive waste classified by any agency of the United States government as "below regulatory concern" or otherwise exempt from federal regulation.

(B) If a court of the United States finally determines that a law of a party state conflicts with this compact, this compact shall prevail to the extent of the conflict. The commission shall not commence an action seeking such a judicial determination unless commencement of the action is approved by a two-thirds vote of the membership of the commission.

(C) Except as authorized by this compact, no law, rule, or regulation of a party state or of any of its subdivisions or instrumentalities may be applied in 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, no provision of this compact shall be construed to eliminate or reduce in any way the 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 noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact, or any other matter arising from this compact. The provisions of this compact shall not alter otherwise applicable laws relating to compensation of employees for workplace injuries.

(E) Except as provided in 28 U.S.C. 1251(A) , the district courts of the United States have exclusive jurisdiction to decide cases arising under this compact. Article VII(E) of this compact does not apply to proceedings within the jurisdiction of state or federal regulatory agencies nor to judicial review of proceedings before state or federal regulatory agencies. Article VII(E) of this compact shall not be construed to diminish other laws of the United States conferring jurisdiction on the courts of the United States.

(F) For the purposes of activities pursuant to this compact, the sovereign immunity of party states and employees of party states shall be as follows:

(1) A party state or employee thereof, while acting within the scope of employment, shall not be subject to suit or held liable for damages to persons, property, or the environment resulting from the development, construction, operation, regulation, closing, or long-term care of a compact facility, or any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact. This applies whether the claimed liability of the party state or employee is based on common law, statute, rule, or regulation.

(2) The sovereign immunity granted in Article VII(F)(1) of this compact does not apply to any of the following:

(a) Actions based upon the activities of the party states as generators of waste. With regard to those actions, the sovereign immunity of the party states shall not be affected by this compact.

(b) Actions based on the obligations of the party states to each other and the commission imposed by this compact, or other contracts related to the disposal of waste under this compact. With regard to those actions, the party states shall have no sovereign immunity.

(c) Actions against a host state, or employee thereof, when the host state 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 in Article VII(F)(2) of this compact, it is determined that, notwithstanding Article VII(F)(1) of this compact, a party state, or employee of that state who acted within the scope of employment, is liable for damages or has liability for 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 compact facility with respect to which the liability was incurred shall indemnify the party state or employee against that liability. Those generators also shall indemnify the party state or employee against all reasonable attorney's fees and expenses incurred in defending against any such action. The indemnification obligation of generators under Article VII(G) of this compact shall be joint and several, except that the indemnification obligation of party states with respect to their activities as generators of waste shall not be joint and several, but instead shall be prorated according to the amount of waste each state has disposed of at the compact facility giving rise to the liability. Among generators, there shall be rights of contribution based upon equitable principles, and generators shall have rights of contribution against any other person responsible for such damages under common law, statute, rule, or regulation. A party state that through its own activities did not generate any waste disposed of at the compact facility giving rise to the liability, an employee of such a party state, and the commission shall have no contribution obligation under Article VII(G) of this compact. Article VII(G) of this compact shall not be construed as a waiver of the sovereign immunity provided for in Article VII(F)(1) of this compact.

(H) The sovereign immunity of a party state provided for in Article VII(F)(1) of this compact shall not be extended to any private contractor assigned 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 membership in the compact. The commission may establish appropriate eligibility requirements. These requirements may include, but are not limited to, an eligibility fee or designation as a host state. A petitioning state becomes eligible for membership in the compact upon the approval of the commission, including the affirmative vote of the member from each host state in which a compact facility is operating or being developed or constructed. Any state becoming eligible upon the approval of the commission becomes a member of the compact when the state enacts this compact into law and pays the eligibility fee established by the commission.

(B) The commission is formed upon the appointment of commission members and the tender of the membership fee payable to the commission by three party states. The governor of the first state to enact this compact shall convene the initial meeting of the commission. The commission shall cause legislation to be introduced in the congress which grants the consent of the congress to this compact, and shall take action necessary to organize the commission and implement the provisions of this compact.

(C) A party state that has fully discharged its obligations under Article VI(I) of this compact, or has been relieved under Article VI(E) of this compact of its responsibilities to serve as a host state, may withdraw from this compact by repealing the authorizing legislation and by receiving the unanimous consent of the commission. Withdrawal takes effect on the date specified in the commission resolution consenting to withdrawal. All legal rights of the withdrawn state established under this compact, including, but not limited to, the right to have waste generated within its borders disposed of at compact facilities, cease upon the effective date of withdrawal, but any legal obligations of that party state under this compact, including, but not limited to, those set forth in Article VIII(E) of this compact continue until they are fulfilled.

(D) Any party state that fails to comply with the terms of this compact or fails to fulfill its obligations may have reasonable financial penalties imposed against it, the right to have waste generated within its borders disposed of at compact facilities, or any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact suspended, or its membership in the compact revoked by a two-thirds vote of the commission, provided that the membership of the party state designated to host the next compact facility shall not be revoked unless the member from the host state of any then operating compact facility votes in the affirmative. Revocation takes effect on the date specified in the resolution revoking the party state's membership. All legal rights of the revoked party state established under this compact, including, but not limited to, the right to have waste generated within its borders disposed of at compact facilities, cease upon the effective date of revocation, but any legal obligations of that party state under this compact, including, but not limited to, those set forth in Article VIII(E) of this compact, continue until they are fulfilled. The chairperson of the commission shall transmit written notice of a revocation of a party state's membership in the compact, suspension of a party state's waste disposal rights, or imposition of financial penalties immediately following the vote of the commission to the governor of the affected party state, governors of all the other party states, and the congress of the United States.

(E) A party state that withdraws from this compact or has its membership in the compact revoked before it has fully discharged its obligations under Article VI of this compact forthwith shall repay to the commission the portion of the funds provided to that state by the commission for the development, construction, operation, closing, or long-term care of a compact facility that the commission determines is fair and equitable, taking into consideration the period of time the compact facility located in that host state was in operation and the amount of waste disposed of at the facility. If at any time after a compact facility begins operating, a party state withdraws from the compact or has its membership revoked, the withdrawing or revoked party state shall be obligated forthwith to pay to the commission the amount the commission determines would have been paid under the fee system established by the host state of the facility to dispose of at the facility the estimated volume of waste generated in the withdrawing or revoked party state that would have been disposed of at the facility from the time of withdrawal or revocation until the time the facility is closed. Any funds so paid to the commission shall be distributed by the commission to the persons who would have been entitled to receive the funds had they originally been paid to dispose of waste at the facility. Any person receiving such funds from the commission shall apply the funds to the purposes to which they would have been applied had they originally been paid to dispose of waste at the compact facility. In addition, a withdrawing or revoked party state forthwith shall pay to the commission an amount the commission determines to be necessary to cover all other costs and damages incurred by the commission and the remaining party states as a result of the withdrawal or revocation. The intention of Article VIII(E) of this compact is to eliminate any decrease in revenue resulting from withdrawal of a party state or revocation of a party state's membership, to eliminate financial harm to the remaining party states, and to create an incentive for party states to continue as members of the compact and to fulfill their obligations. Article VIII(E) of this compact shall be construed and applied so as to effectuate this intention.

(F) Any party state whose right to have waste generated within its borders disposed of at compact facilities is suspended by the commission shall pay to the host state of the compact facility to which access has been suspended the amount the commission determines is reasonably necessary to ensure that the host state, or any political subdivision thereof, does not incur financial loss as a result of the suspension of access.

(G) This compact becomes effective upon enactment by at least three eligible states and consent to this compact by the congress. The consent given to this compact by the congress shall extend to any future admittance of new party states and to the power of the commission to regulate the shipment and disposal of waste and disposal of naturally occurring and accelerator-produced radioactive material pursuant to this compact. Amendments to this compact are effective when enacted by all party states and, if necessary, consented to by the congress. To the extent required by section (4)(d) of "The Low-Level Radioactive Waste Policy Amendments Act of 1985," every five years after this compact has taken effect, the congress by law may withdraw its consent.

(H) The withdrawal of a party state from this compact, the suspension of waste disposal rights, the termination of a party state's designation as a host state, or the revocation of a state's membership in this compact does not affect the applicability of this compact to the remaining party states.

(I) This compact may be dissolved and the obligations arising under this compact may be terminated only as follows:

(1) Through unanimous agreement of all party states expressed in duly enacted legislation;

(2) Through withdrawal of consent to this compact by the congress under Article I, section 10 of the United States constitution, in which case dissolution shall take place one hundred twenty days after the effective date of the withdrawal of consent.

Unless explicitly abrogated by the state legislation dissolving this compact, or if dissolution results from withdrawal of congressional consent, the limitations on the investment and use of long-term care funds in Articles VI(O) and VI(Q)(4) of this compact, the contractual obligations in Article V(F) of this compact, the indemnification obligations and contribution rights in Articles VI(O), VI(S), and VII(G) of this compact, and the operation rights and indemnification and hold harmless obligations in Article VI(Q) of this compact shall remain in force notwithstanding dissolution of this compact.

ARTICLE IX

PENALTIES AND ENFORCEMENT

(A) Each party state shall prescribe and enforce penalties against any person who is not an official of another state for violation of any provision of this compact.

(B) The parties to this compact intend that the courts of the United States shall specifically enforce the obligations, including the obligations of party states and revoked or withdrawn party states, established by this compact.

(C) The commission, an affected party state, or both may obtain injunctive relief, recover damages, or both to prevent or remedy violations of this compact.

(D) Each party state acknowledges that the transport into a host state of waste packaged or transported in violation of applicable laws, rules, and regulations may result in the imposition of sanctions by the host state which may include reasonable financial penalties assessed against any generator, transporter, or collector responsible for the violation, or suspension or revocation of access to the compact facility in the host state by any generator, transporter, or collector responsible for the violation.

(E) Each party state has the right to seek legal recourse against any party state which acts in violation of this compact.

(F) This compact shall not be construed to create any cause of action for any person other than a party state or the commission. Nothing in Article IX(F) of this compact shall limit the right of judicial review set forth in Article III(N)(3) of this compact or the rights of contribution set forth in Articles III(P), VI(O), VI(S), and VII(G) of this compact.

ARTICLE X

SEVERABILITY AND CONSTRUCTION

The provisions of this compact shall be severable and if any provision of this compact is finally determined by a court of competent jurisdiction to be contrary to the constitution of any participating state or of the United States or the application thereof to any person or circumstance is held invalid, the validity of the remainder of this compact to that person or circumstance and the applicability of the entire compact to any other person or circumstance shall not be affected thereby. If any provision of this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the state affected as to all severable matters. If any provision of this compact imposing a financial obligation upon a party state, or a state that has withdrawn from this compact or had its membership in this compact revoked, is finally determined by a court of competent jurisdiction to be unenforceable due to the state's constitutional limitations on its ability to pay the obligation, then that state shall use its best efforts to obtain an appropriation to pay the obligation, and, if the state is a party state, its right to have waste generated within its borders disposed of at compact facilities, or any noncompact facility made available to the region by any agreement entered into by the commission pursuant to Article III(H)(6) of this compact, shall be suspended until the appropriation is obtained.

Effective Date: 1984 HB344 04-25-1984