§ 8-8-202 - Text of compact. - Arkansas Statutes

8-8-202. Text of compact.

The Central Interstate Low-Level Radioactive Waste Compact is hereby enacted into law and entered into by the State of Arkansas with any and all states legally joining therein in accordance with its terms, in the form substantially as follows:

ARTICLE I. Policy and Purpose

The party states recognize that each state is responsible for the management of its nonfederal low-level radioactive wastes. They also recognize that the Congress, by enacting the Low-Level Radioactive Waste Policy Act (Public Law 96-573), has authorized and encouraged states to enter into compacts for the efficient management of wastes. It is the policy of the party states to cooperate in the protection of the health, safety, and welfare of their citizens and the environment, and to provide for and encourage the economical management of low-level radioactive wastes. It is the purpose of this compact to provide the framework for such a cooperative effort; to promote the health, safety, and welfare of the citizens and the environment of the region; to limit the number of facilities needed to effectively and efficiently manage low-level radioactive wastes and to encourage the reduction of the generation thereof; and to distribute the costs, benefits, and obligations among the party states. It is the policy of the party states that activities conducted by the commission are the formation of public policies and are therefore public business.

ARTICLE II. Definitions

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

(a) "Commission" means the Central Interstate Low-Level Radioactive Waste Compact Commission;

(b) "Disposal" means the isolation and final disposition of waste;

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

(d) "Extended care" means the continued observation of a facility after closure for the purpose of detecting a need for maintenance, ensuring environmental safety, and determining compliance with applicable licensure and regulatory requirements and includes undertaking any action or cleanup necessary to protect public health and the environment;

(e) "Facility" means any site, location, structure, or property used or to be used for the management of waste;

(f) "Generator" means any person who, in the course of or as an incident to manufacturing, power generation, processing, medical diagnosis and treatment, biomedical research, other industrial or commercial activity, other research, or mining in a party state, produces or processes waste. "Generator" does not include any person who receives waste generated outside the region for subsequent shipment to a regional facility;

(g) "Host state" means any party state in which a regional facility is situated or is being developed;

(h) "Institutional control" means those activities carried out by the host state to physically control access to the disposal site following transfer of the license to the owner of the disposal site. These activities include, but are not limited to, environmental monitoring, periodic surveillance, minor custodial care, and other necessary activities at the site as determined by the host state and administration of funds to cover the costs for these activities. The period of institutional control will be determined by the host state but may not be less than one hundred (100) years following transfer of the license to the owner of the disposal site;

(i) "Low-level radioactive waste" or "waste" means, as defined in the Low-Level Radioactive Waste Policy Act (Public Law 96-573), radioactive waste not classified as: high-level radioactive waste; transuranic waste; spent nuclear fuel; or by-product material as defined in Section 11 e.2 of the Atomic Energy Act of 1954, as amended through 1978;

(j) "Management of waste" means the storage, treatment, or disposal of waste;

(k) "Notification of each party state" means transmittal of written notice to the Governor, presiding officer of each legislative body, and any other persons designated by the party state's commission member to receive such notice;

(l) "Party state" means any state which is a signatory party to this compact;

(m) "Person" means any individual, corporation, business enterprise, or other legal entity, either public or private;

(n) "Region" means the area of the party states;

(o) "Regional facility" means a facility which is located within the region and which has been approved by the commission for the benefit of the party states;

(p) "Site" means any property which is owned or leased by a generator and is contiguous to or divided only by a public or private way from the source of generation;

(q) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, or any other territorial possession of the United States;

(r) "Storage" means the holding of waste for treatment or disposal; and

(s) "Treatment" means any method, technique, or process, including storage for radioactive decay, designed to change the physical, chemical, or biological characteristics or composition of any waste in order to render such waste safer for transport or management, amenable for recovery, convertible to another usable material, or reduced in volume.

ARTICLE III. Rights and Obligations

(a) There shall be provided within the region one (1) or more regional facilities which together provide sufficient capacity to manage all wastes generated within the region. It shall be the duty of regional facilities to accept compatible wastes generated in and from party states, and meeting the requirements of this subchapter, and each party state shall have the right to have the wastes generated within its borders managed at such facility.

(b) To the extent authorized by federal law and host state law, a host state shall regulate and license any regional facility within its borders and ensure the extended care of such facility.

(c) Rates shall be charged to any user of the regional facility, set by the operator of a regional facility, and shall be fair and reasonable and be subject to the approval of the host state. Such approval shall be based upon criteria established by the commission.

(d) A host state may establish fees which shall be charged to any user of a regional facility, and which shall be in addition to the rates approved pursuant to section (c) of this article, for any regional facility within its borders. Any fees proposed by the host state shall be subject to a one hundred twenty-day prior notice to the commission with an opportunity to provide comments to the host state. Such fees shall be fair and reasonable and shall provide the host state with sufficient revenue to cover all anticipated present and future costs associated with any regional facility and a reasonable reserve for future contingencies, which are not covered by rates established in section (c) of this article including, but not limited to:

1. The licensure, operation, monitoring, inspection, maintenance, decommissioning, closure, institutional control, and extended care of a regional facility; and

2. Response, removal, remedial action or cleanup deemed appropriate and required by the host state as a result of a release of radioactive or hazardous materials from such regional facility; and

3. Premiums for property and third-party liability insurance; and

4. Protection of the public health, safety, and environment; and

5. Compensation and incentives to the host community;

6. Any amount due from a judgment or settlement involving a property or third-party liability claim for medical expenses and all other damages incurred as a result of personal injury or death, and damages or losses to real or personal property or the environment; and

7. Cost of defending or pursuing liability claims against any party or state.

The fees established pursuant to this section (d) of this article may include incentives for source and volume reduction and may be based on the hazard of the waste. Notwithstanding anything to the contrary in this compact, or in any state constitution, statute, or regulation, to the extent that such fees are insufficient to pay for any costs associated with a regional facility, including all costs under section (d) of Article III, all party states and any other state(s) whose generators use the regional facility, shall share liability for all such costs. However, there shall be no recovery from the states under section (d) of this article until all available funds, payments or in-kind services have been exhausted including:

i. Designated low-level radioactive waste funds managed by the host state; and

ii. Payable proceeds of insurance or surety policies applicable to a regional facility; and

iii. Proceeds of reasonable collection efforts against the regional facility operator(s); and

iv. Payments from or in-kind services by generators.

In the event any regional facility operator files or has filed against it a bankruptcy proceeding, then for purposes of determining whether or not reasonable collection efforts have been undertaken, the filing of such proceedings if not dismissed within sixty (60) days of filing shall be considered exhaustion of reasonable collection efforts with respect to such party. Recovery from the states under section (d) of Article III upon satisfaction of the exhaustion of available funds, payments, or in-kind services shall not preclude any state from further recovery of its costs from a facility operator, insurer, or generator. During the period of time that such reasonable collection efforts or exhaustion of available funds, payments, or in-kind services occur, any applicable statutes of limitation with respect to claims against any other parties or states will be deemed tolled and will not run. All costs or liabilities shared by a state shall be shared proportionately by comparing the volume of the waste received at a regional facility from the generators of each state with the total volume of the waste received at a regional facility from all generators.

(e) To the extent authorized by federal law, each party state is responsible for enforcing any applicable federal and state laws and regulations pertaining to the packaging and transportation of waste generated within or passing through its borders and shall adopt practices that will ensure that waste shipments originating within its borders and destined for a regional facility will conform to applicable packaging and transportation laws and regulations.

(f) Each party state has the right to rely on the good faith performance of each other party state.

(g) Unless authorized by the commission, it shall be unlawful after January 1, 1986, for any person:

(1) To deposit, at a regional facility, waste not generated within the region;

(2) To accept, at a regional facility, waste not generated within the region;

(3) To export from the region waste which is generated within the region; and

(4) To transport waste from the site at which it is generated except to a regional facility.

ARTICLE IV. The Commission

(a) There is hereby established the Central Interstate Low-Level Radioactive Waste Compact Commission. The commission shall consist of one (1) voting member from each party state, except that each host state shall have two (2) at-large voting members and one (1) nonvoting member from the county in which the facility is located. All members shall be appointed according to the laws of each state. The appointing authority of each party state shall notify the commission in writing of the identity of its member and any alternates. Any alternate may act on behalf of the member only in the absence of such member or members. Each state is responsible for the expenses of its member of the commission.

(b) Except for the nonvoting member, each commission member shall be entitled to one (1) vote. Unless otherwise provided herein, no action of the commission shall be binding unless a majority of the total voting membership casts its vote in the affirmative.

(c) The commission shall elect from among its membership a chairman. The commission shall adopt and publish, in convenient form, bylaws and policies which are not inconsistent with this compact.

(d) The commission shall meet at least once a year, and shall also meet upon the call of the chairman, by petition of a majority of the membership, or upon the call of a host state member. All meetings of the commission shall be open to the public with reasonable advance publicized notice given, and such meetings shall be subject to those exceptions provided for within the open meetings laws of the host state. The commission shall adopt bylaws that are consistent in scope and principle with the open meetings law of the host state or, if there is no host state, the open meetings law of the state in which the commission headquarters are located.

(e) The commission may initiate any proceedings or appear as an intervenor or party in interest before any court of law, or any federal, state, or local agency, board, or commission that has jurisdiction over any matter arising under or relating to the terms and provisions of this compact. The commission shall determine in which proceedings it shall intervene or otherwise appear and may arrange for such expert testimony, reports, evidence, or other participation in such proceedings as may be necessary to represent its views.

(f) The commission may establish such committees as it deems necessary for the purpose of advising the commission on any and all matters pertaining to the management of waste.

(g) The commission may employ and compensate a staff limited only to those persons necessary to carry out its duties and functions. The commission may also contract with and designate any person to perform necessary functions to assist the commission. Unless otherwise required by acceptance of a federal grant, the staff shall serve at the commission's pleasure irrespective of the civil service, personnel, or other merit laws of any of the party states or the federal government and shall be compensated from funds of the commission.

(h) Funding for the commission shall be as follows:

(1) The commission shall set and approve its first annual budget as soon as practicable after its initial meeting. Party states shall equally contribute to the commission budget on an annual basis, an amount not to exceed twenty-five thousand dollars ($25,000) until surcharges are available for that purpose. Host states shall begin imposition of the surcharges provided for in this section as soon as practicable and shall remit to the commission funds resulting from collection of such surcharges within sixty (60) days of their receipt; and

(2) Each state hosting a regional facility shall annually levy surcharges on all users of such facilities, based on the volume and characteristics of wastes received at such facilities, the total of which:

(A) Shall be sufficient to cover the annual budget of the commission; and

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

(i) The commission shall keep accurate accounts of all receipts and disbursements. An independent certified public accountant shall annually audit all receipts and disbursements of commission funds and submit an audit report to the commission. Such audit report shall be made a part of the annual report of the commission required by this article.

(j) The commission may accept for any of its purposes and functions any and all donations, grants of money, equipment, supplies, materials, and services, conditional or otherwise from any person, and may receive, utilize, and dispose of same. The nature, amount, and conditions, if any, attendant upon any donation or grant accepted pursuant to this section, together with the identity of the donor, grantor, or lender, shall be detailed in the annual report of the commission.

(k) (1) Except as otherwise provided herein, nothing in this compact shall be construed to alter the incidence of liability of any kind for any act, omission, course of conduct, or on account of any causal or other relationships. Generators, transporters of waste, owners, and operators of facilities shall be liable for their acts, omissions, conduct, or relationships in accordance with all laws relating thereto.

(2) The commission herein established is a legal entity separate and distinct from the party states and shall be so liable for its actions. Liabilities of the commission shall not be deemed liabilities of the party states. Members of the commission shall not be personally liable for actions taken by them in their official capacity.

(l) Any person or party state aggrieved by a final decision of the commission may obtain judicial review of such decisions in the United States District Court in the district wherein the commission maintains its headquarters by filing in such court a petition for review within sixty (60) days after the commission's final decision. Proceedings thereafter shall be in accordance with the rules of procedure applicable in such court.

(m) The commission shall:

(1) Receive and approve the application of a nonparty state to become a party state in accordance with Article VII;

(2) Submit an annual report to, and otherwise communicate with, the governors and the presiding officers of the legislative bodies of the party states regarding the activities of the commission;

(3) Hear and negotiate disputes which may arise between the party states regarding this compact;

(4) Require of and obtain from the party states, and nonparty states seeking to become party states, data and information necessary to the implementation of commission and party states' responsibilities;

(5) Approve the development and operation of regional facilities in accordance with Article V;

(6) Notwithstanding any other provision of this compact, have the authority to enter into agreements with any person for the importation of waste into the region and for the right of access to facilities outside the region for waste generated within the region. Such authorization to import or export waste requires the approval of the commission, including the affirmative vote of any host state which may be affected;

(7) Revoke the membership of a party state in accordance with Articles V and VII;

(8) Require all party states and other persons to perform their duties and obligations arising under this compact by an appropriate action in any form designated in Article IV (e); and

(9) Take such action as may be necessary to perform its duties and functions as provided in this compact.

(n) All files, records, and data of the commission shall be open to reasonable public inspection, regardless of physical form, subject to those exceptions listed within the host state public records law. The commission shall adopt bylaws relating to the availability of files, records, and data of the commission that are consistent in scope and principle with the public records law of the host state or, if there is no host state, the public records law of the state in which the commission headquarters are located.

(o) All decisions of the commission regarding public meetings and public records issues shall be reviewable solely in a United States District Court of a host state or, if there is no host state, then in the state in which the compact commission headquarters are located.

ARTICLE V. Development and Operation of Regional Facilities

(a) Following the collection of sufficient data and information from the states, the commission shall allow each party state the opportunity to volunteer as a host for a regional facility.

(b) If no state volunteers or if no proposal identified by a volunteer state is deemed acceptable by the commission, based on the criteria in Section (c) of this Article, then the commission shall publicly seek applicants for the development and operation of regional facilities.

(c) The commission shall review and consider each applicant's proposal based upon the following criteria:

(1) The capability of the applicant to obtain a license from the applicable authority;

(2) The economic efficiency of each proposed regional facility, including the total estimated disposal and treatment costs per cubic foot of waste;

(3) Financial assurances;

(4) Accessibility to all party states; and

(5) Such other criteria as shall be determined by the commission to be necessary for the selection of the best proposal, based on the health, safety, and welfare of the citizens in the region and the party states.

(d) The commission shall make a preliminary selection of the proposal or proposals considered most likely to meet the criteria enumerated in Section (c) and the needs of the region.

(e) Following notification of each party state of the results of the preliminary selection process, the commission shall:

(1) Authorize any person whose proposal has been selected to pursue licensure of the regional facility or facilities in accordance with the proposal originally submitted to the commission or as modified with the approval of the commission; and

(2) Require the appropriate state or states or the U.S. Nuclear Regulatory Commission to process all applications for permits and licenses required for the development and operation of any regional facility or facilities within a reasonable period from the time that a completed application is submitted.

(f) The preliminary selection or selections made by the commission pursuant to this article shall become final and receive the commission's approval as a regional facility upon the issuance of a license by the licensing authority. If a proposed regional facility fails to become licensed, the commission shall make another selection pursuant to the procedures identified in this article.

(g) The commission may by a two-thirds (2/3) affirmative vote of its membership revoke the membership of any party state which, after notice and hearing shall be found to have arbitrarily or capriciously denied or delayed the issuance of a license or permit to any person authorized by the commission to apply for such license or permit. Revocation shall be in the same manner as provided for in Section (e) of Article VII.

ARTICLE VI. Other Laws and Regulations

(a) Nothing in this compact shall be construed to:

(1) Abrogate or limit the applicability of any act of Congress or diminish or otherwise impair the jurisdiction of any federal agency expressly conferred thereon by the Congress;

(2) Prevent the application of any law which is not otherwise inconsistent with this compact;

(3) Prohibit or otherwise restrict the management of waste on the site where it is generated if such is otherwise lawful;

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

(5) Alter the relations between, and the respective internal responsibilities of, the government of a party state and its subdivisions; and

(6) Affect the generation or management of waste generated by the federal government or federal research and development activities.

(b) No party state shall pass or enforce any law or regulation which is inconsistent with this compact.

(c) All laws and regulations or parts thereof of any party state which are inconsistent with this compact are hereby declared null and void for purposes of this compact. Any legal right, obligation, violation, or penalty arising under such laws or regulations prior to enactment of this compact shall not be affected.

(d) No law or regulation of a party state or of any subdivision or instrumentality thereof may be applied so as to restrict or make more costly or inconvenient access to any regional facility by the generators of another party state than for the generators of the state where the facility is situated.

ARTICLE VII. Eligible Parties, Withdrawal, Revocation, Entry Into Force, Termination

(a) This compact shall have as initially eligible parties the states of Arkansas, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, and Oklahoma. Such initial eligibility shall terminate on January 1, 1984.

(b) Any state may petition the commission for eligibility. A petitioning state shall become eligible for membership in the compact upon the unanimous approval of the commission.

(c) An eligible state shall become a member of the compact and shall be bound by it after such state has enacted the compact into law. In no event shall the compact take effect in any state until it has been entered into force as provided for in Section (f) of this article.

(d) Any party state may withdraw from this compact by enacting a statute repealing the same. Unless permitted earlier by unanimous approval of the commission, such withdrawal shall take effect five (5) years after the governor of the withdrawing state has given notice in writing of such withdrawal to each governor of the party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.

(e) Any party state which fails to comply with the terms of this compact or fulfill its obligations hereunder may, after notice and hearing, have its privileges suspended or its membership in the compact revoked by the commission. Revocation shall take effect one (1) year from the date such party state receives written notice from the commission of its action. The commission may require such party state to pay to the commission, for a period not to exceed five (5) years from the date of notice of revocation, an amount determined by the commission based on the anticipated fees which the generators of such party state would have paid to each regional facility and an amount equal to that which such party state would have contributed in accordance with Section (d) of Article III, in the event of insufficient revenues. The commission shall use such funds to ensure the continued availability of safe and economical waste management facilities for all remaining party states. Such state shall also pay an amount equal to that which such party state had contributed to the annual budget of the commission if such party state would have remained a member of the compact. All legal rights established under this compact of any party state which has its membership revoked shall cease upon the effective date of revocation; however, any legal obligations of such party state arising prior to the effective date of revocation shall not cease until they have been fulfilled. Written notice of revocation of any state's membership in the compact shall be transmitted immediately following the vote of the commission, by the chairman, to the governor of the affected party state, all other governors of the party states, and the Congress of the United States.

(f) This compact shall become effective after enactment by at least three (3) eligible states and after consent has been given to it by the Congress. The Congress shall have the opportunity to withdraw such consent every five (5) years. Failure of the Congress to withdraw its consent affirmatively shall have the effect of renewing consent for an additional five (5) year period. The consent given to this compact by the Congress shall extend to any future admittance of new party states under Sections (b) and (c) of this article and to the power to ban the exportation of waste pursuant to Article III.

(g) The withdrawal of a party state from this compact under Section (d) of this article or the revocation of a state's membership in this compact under Section (e) of this article shall not affect the applicability of this compact to the remaining party states.

(h) This compact shall be terminated when all party states have withdrawn pursuant to Section (d) of this article.

ARTICLE VIII. Penalties

(a) Each party state, consistent with its own law, shall prescribe and enforce penalties against any person for violation of any provision of this compact.

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

ARTICLE IX. Severability and Construction

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