Chapter 16

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16.11(3)(n)4.e. 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 sub. (8) (e).

16.11(3)(n)4m. 4m. Any trial de novo under subd. 4. of the facts shall be governed by the federal rules of civil procedure and the federal rules of evidence.

16.11(3)(n)5. 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.

16.11(3)(n)6. 6. Except as provided in subd. 5., actions of the commission that are not final decisions are not subject to judicial review.

16.11(3)(o) (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:

16.11(3)(o)1. 1. Import waste generated outside the region for management within the region.

16.11(3)(o)2. 2. Export waste generated within the region for disposal outside the region.

16.11(3)(o)3. 3. Manage waste generated outside the region at a facility within the region.

16.11(3)(o)4. 4. Dispose of waste generated within the region at a facility within the region that is not a compact facility.

16.11(3)(p) (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.

16.11(3)(q) (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.

16.11(3)(r) (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.

16.11(4) (4) 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:

16.11(4)(a) (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;

16.11(4)(b) (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:

16.11(4)(b)1. 1. The health, safety and welfare of the citizens of the party states.

16.11(4)(b)2. 2. The existence of compact facilities within each party state.

16.11(4)(b)3. 3. The minimization of waste transportation.

16.11(4)(b)4. 4. The volumes and types of wastes projected to be generated within each party state.

16.11(4)(b)5. 5. The environmental impacts on the air, land and water resources of the party states.

16.11(4)(b)6. 6. The economic impacts on the party states.

16.11(4)(c) (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;

16.11(4)(d) (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.

16.11(5) (5) Article V — Rights and Obligations of Party States.

16.11(5)(a) (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.

16.11(5)(b) (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 sub. (6) (j) and to the provisions contained in subs. (6) (L) and (s), (8) (d), (9) (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).

16.11(5)(c) (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.

16.11(5)(d) (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 paragraph shall be construed to require a party state to enter into any agreement with the U.S. nuclear regulatory commission.

16.11(5)(e) (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.

16.11(5)(f) (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.

16.11(5)(g) (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.

16.11(6) (6) Article VI — Development, Operation and Closing of Compact Facilities.

16.11(6)(a) (a) Any party state may volunteer to become a host state and the commission may designate that state as a host state.

16.11(6)(b) (b) If not all compact facilities required by the regional disposal plan are developed pursuant to par. (a), the commission may designate a host state.

16.11(6)(c) (c) After a state is designated a host state by the commission, the state 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 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.

16.11(6)(d) (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).

16.11(6)(e) (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 par. (d), 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 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.

16.11(6)(f) (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.

16.11(6)(g) (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.

16.11(6)(h) (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.

16.11(6)(i) (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.

16.11(6)(j) (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 sub. (3) (j) 2. The fee system shall include incentives for source reduction and shall be based on the hazard of the waste as well as the volume.