16.11 (3) (m) 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 and its employes are not personally liable for actions taken by them in their official capacity. The commission is not liable or otherwise responsible for any costs, expenses or liabilities resulting from the development, construction, operation, regulation, closing or long-term care of any compact facility or any noncompact facility made available to the region by any contract or agreement entered into by the commission under par. (h) 6. Nothing in this paragraph relieves the commission of its obligations under this subsection or under contracts to which it is a party. Any liabilities of the commission are not liabilities of the party states.
115,62
Section 62
. 16.11 (3) (n) 2. of the statutes is repealed.
115,63
Section 63
. 16.11 (3) (o) of the statutes is repealed and recreated to read:
16.11 (3) (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.
115,64
Section 64
. 16.11 (3) (p) to (r) of the statutes are created to read:
16.11 (3) (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 this paragraph. 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 sub. (7) (g). Generators who provide the required indemnification have the rights of contribution provided in sub. (7) (g). This paragraph 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 par. (p), 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.
115,65
Section 65
. 16.11 (4) (intro.) and (a) of the statutes are amended to read:
16.11 (4) (title) Article IV - Regional Management Disposal Plan. (intro.) The commission shall adopt and periodically update a regional management disposal plan designed to ensure the safe and efficient management disposal of waste generated within the region. In adopting a regional waste management
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 regional compact facilities which are presently necessary and which are projected to be necessary to manage dispose of waste generated within the region;
115,66
Section 66
. 16.11 (4) (b) of the statutes is repealed.
115,67
Section 67
. 16.11 (4) (b) 6. of the statutes is created to read:
16.11 (4) (b) 6. The economic impacts on the party states.
115,68
Section 68
. 16.11 (4) (c) of the statutes is renumbered 16.11 (4) (b), and 16.11 (4) (b) (intro.), 2., 4. and 5., as renumbered, are amended to read:
16.11 (4) (b) (intro.) Develop and adopt procedures and criteria for identifying a party state as a host state for a regional compact facility. In developing these criteria, the commission shall consider all of the following:
2. The existence of regional compact facilities within each party state.
4. The volumes and types of wastes projected to be generated within each party state.
5. The environmental, economic and ecological impacts on the air, land and water resources of the party states.
115,69
Section 69
. 16.11 (4) (d) of the statutes is renumbered 16.11 (4) (c) and amended to read:
16.11 (4) (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 regional compact facility;
115,70
Section 70
. 16.11 (4) (e) of the statutes is renumbered 16.11 (4) (d) and amended to read:
16.11 (4) (d) Prepare a draft management disposal plan and any update thereof, 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 or update of the management disposal plan. The management disposal plan
and any update thereof shall include the commission's response to public and party state comment.
115,71
Section 71
. 16.11 (5) (b) of the statutes is amended to read:
16.11 (5) (b) Each 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 managed disposed of at regional compact facilities subject to the payment of all fees established by the host state under sub. (6) (j) and to the provisions contained in sub. subs. (6) (L) and (s), (8) (d), (9) (c) (d) and (10). 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 sub. (3) (h) 6., subject to the provisions of subs. (6) (L) and (s), (8) (d) and (10).
115,72
Section 72
. 16.11 (5) (c) of the statutes is repealed and recreated to read:
16.11 (5) (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 sub. (3) (h) 6., 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.
115,73
Section 73
. 16.11 (5) (f) and (g) of the statutes are created to read:
16.11 (5) (f) If, notwithstanding the sovereign immunity provision in sub. (7) (f) 1. and the indemnification provided for in subs. (3) (p), (6) (o) and (7) (g), 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 sub. (7) (f) 1. and not described in sub. (7) (f) 2., 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 this paragraph 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 par. (f), the surcharge or fee provided for in sub. (3) (j) 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.
115,74
Section 74
. 16.11 (6) (title) and (a) to (c) of the statutes are amended to read:
16.11 (6) (title) Article VI - Development and, 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 upon a two-thirds vote of its members.
(b) If not all regional compact facilities required by the regional management disposal plan are not developed pursuant to par. (a) or upon notification that an existing regional facility will be closed, the commission may designate a host state.
(c) Each party After a state
is designated as a host state by the commission, the 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 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 this paragraph. The obligation set forth in this paragraph is contingent upon the discharge by the commission of its obligation set forth in sub. (3) (i) 5.
115,75
Section 75
. 16.11 (6) (d) of the statutes is renumbered 16.11 (6) (e) and amended to read:
16.11 (6) (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. The Except as set forth in par. (d), the commission may relieve a party state of this 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 regional
compact facility site of the type it is designated to host 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 is 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.
115,76
Section 76
. 16.11 (6) (d) of the statutes is created to read:
16.11 (6) (d) If a party state designated as a host state fails to discharge the obligations imposed upon it by par. (c), 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 sub. (8) (d).
115,77
Section 77
. 16.11 (6) (e) of the statutes is repealed.
115,78
Section 78
. 16.11 (6) (f) of the statutes is renumbered 16.11 (6) (h) and amended to read:
16.11 (6) (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 extended
long-term care of that facility.
115,79
Section 79
. 16.11 (6) (f) of the statutes is created to read:
16.11 (6) (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.
115,80
Section 80
. 16.11 (6) (g) of the statutes is repealed and recreated to read:
16.11 (6) (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.
115,81
Section 81
. 16.11 (6) (h) of the statutes is repealed.
115,82
Section 82
. 16.11 (6) (i) of the statutes is renumbered 16.11 (6) (j) and amended to read:
16.11 (6) (j) A host state may
shall establish a fee system for of fees to be collected from the users of any regional compact facility within its borders. The fee system, and the costs paid through the system, shall be reasonable and equitable. This The fee system shall be subject to the commission's approval. The fee system shall provide the host state with sufficient revenue to cover any pay costs associated with the compact facility 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 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 sub. (3) (j) 2. The fee system may shall include incentives for source reduction and may shall be based on the hazard of the waste as well as the volume.
115,83
Section 83
. 16.11 (6) (i) of the statutes is created to read:
16.11 (6) (i) A host state shall accept waste for disposal for a period of 20 years from the date on which 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 par. (L) 4., the 20-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.
115,84
Section 84
. 16.11 (6) (j) of the statutes is renumbered 16.11 (6) (k) and amended to read:
16.11 (6) (k) A host state shall ensure that a
regional compact facility located within its borders which that 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 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.
115,85
Section 85
. 16.11 (6) (k) of the statutes is renumbered 16.11 (6) (m) and amended to read:
16.11 (6) (m) 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 5 years prior to the intended date of closure. This paragraph compact shall not prevent an emergency closing of a regional compact facility by a host state to protect its air, land and water resources and the health and safety of its citizens. However, a all people who may be affected by the facility. A host state which that has an emergency closing of a regional compact facility shall notify the commission in writing within 3 working days of its action and shall, within 30 working days of its action, demonstrate justification for the closing.
115,86
Section
86. 16.11 (6) (L) of the statutes is repealed and recreated to read:
16.11 (6) (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.
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 3 years, enact legislation providing for the development of the next compact facility.
b. Within 7 years, initiate site characterization investigations and tests to determine licensing suitability for the next compact facility.
c. Within 11 years, submit a license application for the next compact facility that the responsible licensing authority deems complete.
2m. If a host state fails to take any of the actions under subd. 2. 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 sub. (3) (h) 6., 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 par. (d) and sub. (8) (d).
3. Within 14 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 that 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 sub. (3) (h) 6., 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 par. (d) and sub. (8) (d). 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 par. (i) 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 sub. (3) (h) 6., 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 20 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 par. (d) and sub. (8) (d). If at the time the capacity of the then-operating compact facility has been reached, or 20 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 sub. (3) (h) 6. 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 par. (i) 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 sub. (3) (h) 6. 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 this subdivision 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 par. (i) or inconsistent with par. (p) or (q).
5. During any period that access is denied for waste disposal pursuant to subd. 2m., 3. or 4., 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 subds. 2., 2m. and 3. 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.
115,87
Section 87
. 16.11 (6) (m) of the statutes is repealed.
115,88
Section 88
. 16.11 (6) (n) to (t) of the statutes are created to read:
16.11 (6) (n) A party state that has fully discharged its obligations under par. (i) 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 par. (i) or has been relieved under par. (e) 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 3 years, nor more than 5 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, 180 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 this paragraph 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 sub. (7) (g). Generators that provide indemnification shall have contribution rights as provided in sub. (7) (g).
(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 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 par. (i) 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 attorney 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 sub. (3) (r), 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 this 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 employe of that state, for all of the following:
1. Any cost of a remedial action described in sub. (3) (p) 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 par. (o) 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 employe 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 sub. (3) (h) 6., or any other matter arising from this compact. The agreement also shall require generators to indemnify the party state or employe against all reasonable attorney 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 employes thereof that are grossly negligent or wilful and wanton.
(t) The agreement under par. (s) 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 employe 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 sub. (7) (g).
