Chapter 16

16.11(6)(q)3. 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.

16.11(6)(q)4. 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.

16.11(6)(r) (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.

16.11(6)(s) (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:

16.11(6)(s)1. 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.

16.11(6)(s)2. 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.

16.11(6)(s)3. 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 sub. (3) (h) 6., 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 fees and expenses incurred in defending any action for such damages. This indemnification shall not extend to liability based on any of the following:

16.11(6)(s)3.a. a. The activities of the party states as generators of waste.

16.11(6)(s)3.b. 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.

16.11(6)(s)3.c. c. Activities of a host state or employees thereof that are grossly negligent or willful and wanton.

16.11(6)(t) (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 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 sub. (7) (g).

16.11(7) (7) Article VII — Other Laws and Regulations.

16.11(7)(a) (a) Nothing in this compact:

16.11(7)(a)1. 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;

16.11(7)(a)2. 2. Prevents the enforcement of any other law of a party state which is not inconsistent with this compact;

16.11(7)(a)3. 3. Prohibits any generator from storing or treating, on its own premises, waste generated by it within the region;

16.11(7)(a)4. 4. Affects any administrative or judicial proceeding pending on the effective date of this compact;

16.11(7)(a)5. 5. Alters the relations between and the respective internal responsibility of the government of a party state and its subdivisions;

16.11(7)(a)6. 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 described in 42 USC 2021;

16.11(7)(a)7. 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.

16.11(7)(a)8. 8. Requires a party state to enter into any agreement with the U.S. nuclear regulatory commission.

16.11(7)(a)9. 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.

16.11(7)(b) (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.

16.11(7)(c) (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.

16.11(7)(d) (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 employees for workplace injuries.

16.11(7)(e) (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.

16.11(7)(f) (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:

16.11(7)(f)1. 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 sub. (3) (h) 6. This applies whether the claimed liability of the party state or employee is based on common law, statute, rule or regulation.

16.11(7)(f)2. 2. The sovereign immunity granted in subd. 1. does not apply to any of the following:

16.11(7)(f)2.a. 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.

16.11(7)(f)2.b. 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.

16.11(7)(f)2.c. 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.

16.11(7)(g) (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 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 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 employee against that liability. Those generators also shall indemnify the party state or employee 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 employee 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.

16.11(7)(h) (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).

16.11(8) (8) Article VIII — Eligible Parties, Withdrawal, Revocation, Suspension of Access, Entry into Force and Termination.

16.11(8)(a) (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.

16.11(8)(b) (b) The commission is formed upon the appointment of commission members and the tender of the membership fee payable to the commission by 3 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 provision of this compact.

16.11(8)(c) (c) 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 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 par. (e) continue until they are fulfilled.

16.11(8)(d) (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 sub. (3) (h) 6., 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 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, the governors of all the other party states and the congress of the United States.

16.11(8)(e) (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.

16.11(8)(f) (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.

16.11(8)(g) (g) This compact becomes effective upon enactment by at least 3 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 5 years after this compact has taken effect, the congress by law may withdraw its consent.

16.11(8)(h) (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.

16.11(8)(i) (i) This compact may be dissolved and the obligations arising under this compact may be terminated only as follows:

16.11(8)(i)1. 1. Through unanimous agreement of all party states expressed in duly enacted legislation.

16.11(8)(i)2. 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.

16.11(8)(j) (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 contribution 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.

16.11(9) (9) Article IX — Penalties and Enforcement.

16.11(9)(a) (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.

16.11(9)(b) (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.

16.11(9)(c) (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.

16.11(9)(d) (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 may include suspension or revocation of access to the facility in the host state by any generator, transporter or collector responsible for the violation.

16.11(9)(e) (e) Each party state has the right to seek legal recourse against any party state which acts in violation of this compact.

16.11(9)(f) (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).

16.11(10) (10) 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 sub. (3) (h) 6., shall be suspended until the appropriation is obtained.

16.11 History History: 1983 a. 393; 1995 a. 115; 1997 a. 35.

16.115 16.115 Fees.

16.115(1) (1) The department shall establish by rule a schedule of annual fees to be paid by nuclear power plant operators and shall collect the fees until a regional facility operated under s. 16.11 begins accepting waste for disposal. The fees shall be based on the number of nuclear reactors at each plant and shall cover 75 percent of the state’s costs enumerated in sub. (3) incurred prior to the acceptance of waste at the facility.

16.115(2) (2) The department shall establish by rule a schedule of annual fees to be paid by generators, as defined under s. 16.11 (2) (j), who use a compact facility, 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.

16.115(3) (3) The fees established under subs. (1) and (2) shall cover all of the following costs:

16.115(3)(a) (a) The costs of state agencies in assisting the midwest interstate low-level radioactive waste commission member representing this state.

16.115(3)(b) (b) The actual and necessary expenses of the commissioner in the performance of his or her duties.

16.115(3)(d) (d) The costs of membership in and costs associated with the midwest interstate low-level radioactive waste compact.

16.115 History History: 1983 a. 393, 543; 1995 a. 115; 2005 a. 253.

16.115 Cross-reference Cross-reference: See also ch. Adm 42, Wis. adm. code.

16.12 16.12 Violation of midwest interstate low-level radioactive waste compact.

16.12(1) (1) Except as provided in sub. (2), any person, other than an official of another state, who violates any provision of the midwest interstate low-level radioactive waste compact under ss. 16.11 to 16.13 shall forfeit not more than $1,000.

16.12(2) (2) The sole 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 are the remedies provided in s. 16.11.

16.12 History History: 1983 a. 393; 1995 a. 115.

16.13 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) (j), to provide information necessary for the member to discharge his or her duties under s. 16.11.

16.13 History History: 1983 a. 393; 1995 a. 115.

16.15 16.15 Resource recovery and recycling program.

16.15(1) (1) Definitions. In this section:

16.15(1)(a) (a) “Agency” has the meaning given under s. 16.52 (7).

16.15(1)(ab) (ab) “Authority” has the meaning given under s. 16.70 (2), but excludes the University of Wisconsin Hospitals and Clinics Authority, the Lower Fox River Remediation Authority, and the Wisconsin Economic Development Corporation.

16.15(1)(ae) (ae) “Cost of disposing of processed material” has the meaning given in s. 287.11 (2m) (a) 1.

16.15(1)(ah) (ah) “Cost of selling processed material” has the meaning given in s. 287.11 (2m) (a) 2.

16.15(1)(aj) (aj) “Major appliance” has the meaning given in s. 287.01 (3).

16.15(1)(am) (am) “Office wastepaper” means any wastepaper or wastepaper product generated by an agency.

16.15(1)(ar) (ar) “Processed material” has the meaning given in s. 287.11 (2m) (a) 3.

16.15(1)(b) (b) “Recovered material” has the meaning under s. 16.70 (11).

16.15(1)(c) (c) “Recyclable material” means material that is suitable for recycling.

16.15(1)(d) (d) “Recycled material” has the meaning under s. 16.70 (12).

16.15(1)(e) (e) “Recycling” has the meaning under s. 289.43 (1).

16.15(1)(f) (f) “Yard waste” has the meaning given in s. 287.01 (17).

16.15(2) (2) Program establishment. The department shall establish a resource recovery and recycling program to promote the reduction of solid waste by agencies and authorities, the separation, recovery and disposition of recyclable materials and the procurement of recycled materials and recovered materials. The department shall require each agency and authority to participate in the resource recovery and recycling program. The department shall also investigate opportunities for the inclusion of local governmental units in the resource recovery and recycling program and shall permit participation of local governmental units in the program when feasible.

16.15(3) (3) Source separation.

16.15(3)(a) (a) Requirements. Except as provided in par. (b), the department shall require each agency and authority to do all of the following:

16.15(3)(a)1. 1. Separate for recycling all lead acid batteries, waste oil and major appliances that are generated as solid waste by the agency or authority beginning on January 1, 1991.