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).
115,89
Section 89
. 16.11 (7) (a) 3. of the statutes is amended to read:
16.11 (7) (a) 3. Prohibits any storage or treatment of waste by the generator from storing or treating, on its own premises, waste generated by it within the region;
115,90
Section 90
. 16.11 (7) (a) 6. of the statutes is amended to read:
16.11 (7) (a) 6. Affects the generation, treatment, storage or disposal of waste generated by the atomic energy defense activities of the secretary of the U.S. department of energy or successor agencies or federal research and development activities as defined described in 42 USC 2021; or
115,91
Section 91
. 16.11 (7) (a) 7. of the statutes is amended to read:
16.11 (7) (a) 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.
115,92
Section 92
. 16.11 (7) (a) 9. of the statutes is repealed and recreated to read:
16.11 (7) (a) 9. Limits, expands or otherwise affects the authority of a state to regulate low-level radioactive waste classified by any agency of the U.S. government as “below regulatory concern" or otherwise exempt from federal regulation.
115,93
Section 93
. 16.11 (7) (b) and (c) of the statutes are amended to read:
16.11 (7) (b) For purposes of this compact, all state laws or parts of laws in conflict If a court of the United States finally determines that a law of a party state conflicts with this compact are hereby superseded
, 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) No 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.
115,94
Section 94
. 16.11 (7) (d) to (h) of the statutes are created to read:
16.11 (7) (d) Except as provided in par. (f) and sub. (3) (m), 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 sub. (3) (h) 6., or any other matter arising from this compact. The provisions of this compact shall not alter otherwise applicable laws relating to compensation of employes for workplace injuries.
(e) Except as provided in 28 USC 1251 (a), the district courts of the United States have exclusive jurisdiction to decide cases arising under this compact. This paragraph 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. This paragraph 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 employes of party states shall be as follows:
1. A party state or employe 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 sub. (3) (h) 6. This applies whether the claimed liability of the party state or employe is based on common law, statute, rule or regulation.
2. The sovereign immunity granted in subd. 1. 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 employe thereof, when the host state or employe acted in a grossly negligent or wilful and wanton manner.
(g) If in any action described in par. (f) 1. and not described in par. (f) 2. it is determined that, notwithstanding par. (f) 1., a party state, or employe 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 sub. (6) (s) 3., 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 employe against that liability. Those generators also shall indemnify the party state or employe against all reasonable attorney fees and expenses incurred in defending against any such action. The indemnification obligation of generators under this paragraph 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 employe of such a party state and the commission shall have no contribution obligation under this paragraph. This paragraph shall not be construed as a waiver of the sovereign immunity provided for in par. (f) 1.
(h) The sovereign immunity of a party state provided for in par. (f) 1. shall not be extended to any private contractor assigned responsibilities as authorized in sub. (6) (g).
115,95
Section 95
. 16.11 (8) (title) of the statutes is amended to read:
16.11 (8) (title) Article VIII - Eligible Parties, Withdrawal, Revocation, Suspension of Access, Entry into Force, and Termination.
115,96
Section 96
. 16.11 (8) (a) of the statutes is repealed.
115,97
Section 97
. 16.11 (8) (b) of the statutes is renumbered 16.11 (8) (a) and amended to read:
16.11 (8) (a) Any state not eligible for membership in the compact may petition the commission for eligibility 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 all the member from each host states 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 in the same manner as any state eligible for membership at the time this compact enters into force when the state enacts this compact into law and pays the eligibility fee established by the commission.
115,98
Section 98
. 16.11 (8) (c) of the statutes is repealed.
115,99
Section 99
. 16.11 (8) (d) of the statutes is renumbered 16.11 (8) (b).
115,100
Section 100
. 16.11 (8) (e) of the statutes is renumbered 16.11 (8) (c) and amended to read:
16.11 (8) (c) Any A party state that has fully discharged its obligations under sub. (6) (i), or has been relieved under sub. (6) (e) of its responsibilities to serve as a host state, may withdraw from this compact by repealing the authorizing legislation but no withdrawal may take effect until 5 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 and by receiving the unanimous consent of the commission. 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 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 par. (e) continue until they are fulfilled.
115,101
Section 101
. 16.11 (8) (e) of the statutes is created to read:
16.11 (8) (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 sub. (6) 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. This paragraph shall be construed and applied so as 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.
115,102
Section 102
. 16.11 (8) (f) of the statutes is renumbered 16.11 (8) (d) and amended to read:
16.11 (8) (d) Any party state which that fails to comply with the terms of this compact or fails to fulfill its obligations may have its privileges 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 sub. (3) (h) 6., suspended or its membership in the compact revoked by the commission in accordance with sub. (3) (h) 6 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 one year from on the date the affected party state receives written notice from the commission of its action specified in the resolution revoking the party state's membership. All legal rights of the affected 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 arising prior to revocation under this compact, including, but not limited to, those set forth in par. (e), 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, all other
the governors of all the other party states and the congress of the United States.
115,103
Section 103
. 16.11 (8) (f) of the statutes is created to read:
16.11 (8) (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 that 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.
115,104
Section 104
. 16.11 (8) (g) of the statutes is amended to read:
16.11 (8) (g) This compact becomes effective
July 1, 1983, or at any date subsequent to July 1, 1983, upon enactment by at least 3 eligible states. However, sub. (9) (b) shall not take effect until the congress has by law consented to this compact. The congress shall have an opportunity to withdraw such consent every 5 years. Failure of the congress to affirmatively withdraw its consent has the effect of renewing consent for an additional 5-year period 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 under pars. (b) and (c) and to the power of the region to ban commission to regulate the shipment and disposal of waste from the region and disposal of naturally occurring and accelerator-produced radioactive material pursuant to sub. 3 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 5 years after this compact has taken effect, the congress by law may withdraw its consent.
115,105
Section 105
. 16.11 (8) (h) of the statutes is amended to read:
16.11 (8) (h) The withdrawal of a party state from this compact under par. (e), 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 under par. (f) does not affect the applicability of this compact to the remaining party states.
115,106
Section 106
. 16.11 (8) (i) of the statutes is repealed and recreated to read:
16.11 (8) (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 1, section 10, of the U.S. constitution, in which case dissolution shall take place 120 days after the effective date of the withdrawal of consent.
115,107
Section 107
. 16.11 (8) (j) of the statutes is created to read:
16.11 (8) (j) 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 sub. (6) (o) and (q) 4., the contractual obligations in sub. (5) (f), the indemnification obligations and contributions rights in subs. (6) (o), (s) and (t) and (7) (g) and the operation rights and indemnification and hold-harmless obligations in sub. (6) (q) shall remain in force notwithstanding dissolution of this compact.
115,108
Section 108
. 16.11 (9) (title) of the statutes is amended to read:
16.11 (9) (title) Article IX - Penalties and Enforcement.
115,109
Section 109
. 16.11 (9) (b) of the statutes is repealed and recreated to read:
16.11 (9) (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.
115,110
Section 110
. 16.11 (9) (c) of the statutes is renumbered 16.11 (9) (d) and amended to read:
16.11 (9) (d) Each party state acknowledges that the receipt by 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 may include suspension or revocation of the violator's right of access to the facility in the host state by any generator, transporter or collector responsible for the violation.
115,111
Section 111
. 16.11 (9) (c) of the statutes is created to read:
16.11 (9) (c) The commission or an affected party state or both may obtain injunctive relief or recover damages or both to prevent or remedy violations of this compact.
115,112
Section 112
. 16.11 (9) (d) of the statutes is renumbered 16.11 (9) (e).
115,113
Section 113
. 16.11 (9) (f) of the statutes is created to read:
16.11 (9) (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 this paragraph shall limit the right of judicial review set forth in sub. (3) (n) 3. or the rights of contribution set forth in subs. (3) (p), (6) (o), (s) and (t) and (7) (g).
115,114
Section 114
. 16.11 (10) of the statutes is amended to read:
16.11 (10) 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 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 applicability application thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact to that person or circumstance and the applicability thereof of the entire compact to any government, agency, 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 sub. (3) (h) 6., shall be suspended until the appropriation is obtained.
115,115
Section 115
. 16.115 (2) of the statutes is amended to read:
16.115 (2) The department shall establish by rule a schedule of annual fees to be paid by generators, as defined under s. 16.11 (2) (g) (j), who use a regional compact facility operated under , as defined in s. 16.11 (2) (d), or a noncompact facility made available by an agreement entered into under s. 16.11 (3) (h) 6. for disposal, and, beginning with the operation of the facility, the department shall collect the fees. The fees shall be based on the volume and hazard of waste generated and shall cover the costs enumerated under sub. (3) which are incurred before and after the acceptance of waste for disposal at the facility. Any nuclear power plant operator who has paid a fee under sub. (1) shall receive credit on the fees required of the operator under this subsection at a rate determined by the department so that, over the first 5 years of the collection of fees under this subsection, the power plant operator receives total credits equal to the fees paid under sub. (1). In addition to covering the costs enumerated under sub. (3), the fees established under this subsection for the first 5 years after the acceptance of waste for disposal at the facility shall be sufficient to repay the loan from the general fund made under s. 20.505 (1) (b), and the secretary shall lapse moneys from the appropriation under s. 20.505 (1) (g) to the general fund for that purpose over the 5-year period.
115,116
Section 116
. 16.12 (2) of the statutes is amended to read:
16.12 (2) The sole remedy
remedies against the state, other than in its capacity as a generator, for a violation of any provision of the midwest interstate low-level radioactive waste compact under s. 16.11 is are the remedy remedies provided in s. 16.11 (3) (h) 6 and (8) (f).
115,117
Section 117
. 16.13 of the statutes is amended to read:
16.13 Data collection. Upon the request of the midwest interstate low-level radioactive waste commission member representing the state, the department may require a generator, as defined under s. 16.11 (2) (g)
(j), to provide information necessary for the member to discharge his or her duties under s. 16.11.
115,118
Section 118
. 144.463 (1) of the statutes is amended to read:
144.463 (1) Definition. In this section, “low-level radioactive waste" has the meaning given in s. 16.11 (2) (i) (m).
