65-34a01. Central interstate low-level radioactive waste compact. - Kansas Statutes

65-34a01

Chapter 65.--PUBLIC HEALTH Article 34a.--CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT

      65-34a01.   Central interstate low-level radioactivewaste compact.The central interstate low-level radioactive waste compact is hereby enteredinto and enacted into law in the form substantially as follows:

ARTICLE I. POLICY AND PURPOSE

      The party states recognize that each state is responsible for the managementof its nonfederal low-level radioactive wastes. They also recognize thatthe Congress, by enacting the Low-Level Radioactive Waste Policy Act(Public Law 96-573) has authorized and encouraged states to enter into compactsfor the efficient management of wastes. It is the policy of the party statesto cooperate in the protection of the health, safety and welfare of theircitizens and the environment and to provide for and encourage the economicalmanagement of low-level radioactive wastes. It is the purpose of this compactto provide the framework for such a cooperative effort; to promote the health,safety and welfare of the citizens and the environment of the region; tolimit the number of facilities needed to effectively and efficiently managelow-level radioactive wastes and to encourage the reduction of the generationthereof; and to distribute the costs, benefits and obligations among the partystates. It is the policy of the party states that activities conducted by theCommission are the formation of public policies and are therefore publicbusiness.

ARTICLE II. DEFINITIONS

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

      a.   "Commission" means the Central Interstate Low-Level Radioactive WasteCommission;

      b.   "disposal" means the isolation and final disposition of waste;

      c.   "decommissioning" means the measures taken at the end of a facility'soperating life to assure the continued protection of the public from anyresidual radioactivity or other potential hazards present at the facility;

      d.   "extended care" means the continued observation of a facility afterclosure for thepurpose of detecting a need for maintenance, ensuring environmental safety, anddetermining compliance with applicable licensure and regulatory requirementsand includes undertaking any action or cleanup necessary to protect publichealth and environment;

      e.   "facility" means any site, location, structure or propertyused or to be used for the management of waste;

      f.   "generator" means any person who, in the course of or as an incidentto manufacturing, power generation, processing, medical diagnosis andtreatment,biomedical research, other industrial or commercial activity, other researchor mining in a party state, produces or processes waste. "Generator" doesnot include any person who receives waste generated outside the region forsubsequent shipment to a regional facility;

      g.   "host state" means any party state in which a regionalfacility is situated or is being developed;

      h.   "institutional control" means those activities carried out by the hoststate to physically control access to the disposal site following transfer ofthe license to the owner of the disposal site. These activities include, butare not limited to, environmental monitoring, periodic surveillance, minorcustodial care, and other necessary activities at the site as determined by thehost state and administration of funds to cover the costs for these activities.The period of institutional control will be determined by the host state butmay not be less than 100 years following transfer of the license to theowner of the disposal site;

      i.   "low-level radioactive waste" or "waste" means, as defined inthe Low-Level Radioactive Waste Policy Act (Public Law 96-573), radioactivewaste not classified as: High-level radioactive waste, transuranic waste,spent nuclear fuel, or byproduct 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 disposalof waste;

      k.   "notification of each party state" means transmittal of written noticeto the governor, presiding officer of each legislative body and any otherpersons designated by the party state's Commission member to receive suchnotice;

      l.   "party state" means any state which is a signatory party tothis compact;

      m.   "person" means any individual, corporation, businessenterprise orother legal entity, either public or private;

      n.   "region" means the area of the party states;

      o.   "regional facility" means a facility which is located withinthe regionand which has been approved by the Commission for the benefit of the partystates;

      p.   "site" means any property which is owned or leased by a generator andis contiguous to or divided only by a public or private way from the sourceof 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 otherterritorial possession of the United States;

      r.   "storage" means the holding of waste for treatment ordisposal; and

      s.   "treatment" means any method, technique or process, includingstoragefor radioactive decay, designed to change the physical, chemical or biologicalcharacteristics or composition of any waste in order to render such wastesafer for transport or management, amenable for recovery, convertible toanother usable material or reduced in volume.

ARTICLE III. RIGHTS AND OBLIGATIONS

      a.   There shall be provided within the region one or more regional facilitieswhich together provide sufficient capacity to manage all wastes generatedwithin the region. It shall be the duty of regional facilities to acceptcompatible wastes generated in and from party states, and meeting therequirementsof this act, and each party state shall have the right to have the wastesgenerated withinits borders managed at such facility.

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

      c.   Rates shall be charged to any user of the regional facility, set bythe operator of a regional facility and shall be fair and reasonable andbe subject to the approval of the host state. Such approval shall be basedupon criteria established by the Commission.

      d.   A host state may establish fees which shall be charged to any userof a regional facility and which shall be in addition to the rates approvedpursuant to section c. of this Article, for any regional facility withinits borders.Any fees proposed by the host state shall be subject to a 120-day priornotice to the Commission with an opportunity to provide comments to the hoststate. Such fees shall be fair and reasonable, and shall provide the host statewith sufficient revenue to cover all anticipated present and future costsassociated with any regional facility and a reasonable reserve for futurecontingencies which are not covered by rates established in section c. of thisArticle including, but not limited to:

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

      2.   response, removal, remedial action or cleanup deemed appropriate andrequired by the host state as a result of a release of radioactive or hazardousmaterials from such regional facility;

      3.   premiums for property and third party liability insurance;

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

      5.   compensation and incentives to the host community;

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

      7.   cost of defending or pursuing liability claims against any party orstate.

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

      1.   Designated low-level radioactive waste funds managed by the hoststate;

      2.   payable proceeds of insurance or surety policies applicable to aregional facility;

      3.   proceeds of reasonable collection efforts against the regional facilityoperator or operators; and

      4.   payments from or in-kind services by generators.

      In the event any regional facility operator files or has filed against it abankruptcy proceeding, then for purposes of determining whether or notreasonable collection efforts have been undertaken, the filing of suchproceedings if not dismissed within 60 days of filing shall be consideredexhaustion of reasonable collection efforts with respect to such party.Recovery from the states under section d. of this article upon satisfaction ofthe exhaustion of available funds, payments, or in-kind services shall notpreclude any state from further recovery of its costs from a facility operator,insurer or generator. During the period of time that such reasonable collectionefforts or exhaustion of available funds, payments, or in-kind services occur,any applicable statutes of limitation with respect to claims against any otherparties or states will be deemed tolled and will not run. All costs orliabilities shared by a state shall be shared proportionately by comparing thevolume of the waste received at a regional facility from the generators of eachstate with the total volume of the waste received at a regional facility fromall generators.

      e.   To the extent authorized by federal law, each party state is responsiblefor enforcing any applicable federal and state laws and regulations pertainingto the packaging and transportation of waste generated within or passingthrough its borders and shall adopt practices that will ensure that wasteshipments originating within its borders and destined for a regional facilitywill conform to applicable packaging and transportation laws and regulations.

      f.   Each party state has the right to rely on the good faith performanceof each other party state.

      g.   Unless authorized by the Commission, it shall be unlawful after January1, 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 toa regional facility.

ARTICLE IV. THE COMMISSION

      a.   There is hereby established the Central Interstate Low-Level RadioactiveWaste Commission. The Commission shall consist of one voting member fromeach party state, except that each host state shall have two at-largevoting members and one nonvoting member from the county in which the facilityis located. All members shall be appointed according to the laws of eachstate. Theappointing authority of each party state shall notify the Commission inwriting of the identity of its member and any alternates. An alternate mayact on behalf of the member only in the absence of such member. Each stateis responsible for the expenses of its member of the Commission.

      b.   Except for the nonvoting member, each Commission member shall beentitled to one vote. Unless otherwiseprovided herein, no action of the Commission shall be binding unless a majorityof the total voting membership casts its vote in the affirmative.

      c.   The Commission shall elect from among its membership a chairman. TheCommission shall adopt and publish, in convenient form, bylaws and policieswhich are not inconsistent with this compact.

      d.   The Commission shall meet at least once a year and shall also meetupon the call of the chairman, by petition of a majority of the membershipor upon the call of a host state member.All meetings of the Commission shall be open to the public with reasonableadvance publicized notice given and such meetings shall be subject to thoseexceptions provided for within the open meetings laws of the host state. TheCommission shall adopt bylaws that are consistent in scope and principle withthe open meetings law of the host state, or if there is no host state, the openmeetings law of the state in which the Commission headquarters are located.

      e.   The Commission may initiate any proceedings or appear as an intervenoror party in interest before any court of law, or any federal, state or localagency, board or commission that has jurisdiction over any matter arisingunder or relating to the terms of the provisions of this compact. TheCommissionshall determine in which proceedings it shall intervene or otherwise appearand may arrange for such expert testimony,reports, evidence or other participation in such proceedings as may benecessary to represent its views.

      f.   The Commission may establish such committees as it deems necessaryfor the purpose of advising the Commission on any and all matters pertainingto the management of waste.

      g.   The Commission may employ and compensate a staff limited only to thosepersons necessary to carry out its duties and functions. The Commissionmay also contract with and designate any person to perform necessary functionsto assist the Commission. Unless otherwise required by acceptance of a federalgrant the staff shall serve at the Commission's pleasure irrespective ofthe civil service, personnel or other merit laws of any of the party statesor the federal government and shall be compensated from funds of theCommission.

      h.   Funding for the Commission shall be as follows:

      1.   The Commission shall set and approve its first annual budget as soonas practicable after its initial meeting. Party states shall equally contributeto the Commission budget on an annual basis, an amount not to exceed $25,000until surcharges are available for that purpose. Host states shall beginimposition of the surcharges provided for in this section as soon aspracticable and shall remit to the Commission funds resulting from collectionof such surcharges within 60 days of their receipt; and

      2.   each state hosting a regional facility shall annually levy surchargeson all users of such facilities, based on the volume and characteristicsof 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 hoststate collecting such surcharges may retain a portion of the collectionsufficient to cover the administrative costs of collection, andthat the remainder be sufficientonly to cover the approved annual budget of the Commission.

      i.   The Commission shall keep accurate accounts of all receipts anddisbursements.An independent certified public accountant shall annually audit all receiptsand disbursements of Commission funds and submit an audit report to theCommission. Such audit report shall be made a part of the annual reportof the Commission required by this Article.

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

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

      2.   The Commission herein established is a legal entity separateand distinctfrom the party states and shall be so liable for its actions. Liabilitiesof the Commission shall not be deemed liabilities of the party states. Membersof the Commission shall not be personally liable for actions taken by themin their official capacity.

      l.   Any person or party state aggrieved by a final decision of the Commissionmay obtain judicial review of such decisions in the United States DistrictCourt in the District wherein the Commission maintains its headquartersby filing in such court a petition for review within 60 days after theCommission's final decision. Proceedings thereafter shall be in accordance withthe rules of procedure applicable in such court.

      m.   The Commission shall:

      1.   Receive and approve the application of a nonparty state to becomea party state in accordance with Article VII;

      2.   submit an annual report to, and otherwise communicate with, the governorsand the presiding officers of the legislative bodies of the party statesregarding the activities of the Commission;

      3.   hear and negotiate disputes which may arise between the party statesregarding this compact;

      4.   require of and obtain from the party states, and nonparty states seekingto become party states, data and information necessary to the implementationof Commission and party states' responsibilities;

      5.   approve the development and operation of regional facilities inaccordance with Article V;

      6.   notwithstanding any other provision of this compact, have the authorityto enter into agreements with any person for the importation of waste intothe region and for the right of access to facilities outside the regionfor waste generated within the region. Such authorization to import orexport waste requires the approval of the Commission, including the affirmativevote of any host state which may be affected;

      7.   revoke the membership of a party state in accordance with Articles V andVII;

      8.   require all party states and other persons to perform their dutiesand obligations arising under this compact by an appropriate action in anyforum designated in section e. of Article IV; and

      9.   take such action as may be necessary to perform its duties and functionsas provided in this compact.

      All files, records, and data of the Commission shall be open to reasonablepublic inspection, regardless of physical form, subject to those exceptionslisted within the public records law of the host state. The Commission shalladopt bylaws relating to the availability of files, records, and data of theCommission that are consistent in scope and principle with the public recordslaw of the host state or if there is no host state, the public records law ofthe state in which the Commission headquarters is located.

      All decisions of the Commission regarding public meetings and publicrecords issues shall be reviewable solely in a United States district court ofa host state or if there is no host state then in the state in which theCompact Commission headquarters is located.

ARTICLE V. DEVELOPMENT AND OPERATION OF REGIONAL FACILITIES

      a.   Following the collection of sufficient data and information from thestates, the Commission shall allow each party state the opportunity tovolunteer as a host for a regional facility.

      b.   If no state volunteers or if no proposal identified by a volunteerstate is deemed acceptable by the Commission, based on the criteria in sectionc. of this Article, then the Commission shall publicly seek applicants forthe development and operation of regional facilities.

      c.   The Commission shall review and consider each applicant's proposalbased upon the following criteria:

      1.   The capability of the applicant to obtain a license from the applicableauthority;

      2.   the economic efficiency of each proposed regional facility, includingthe 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 benecessary for the selection of the best proposal, based on the health, safetyand welfare of the citizens in the region and the party states.

      d.   The Commission shall make a preliminary selection of the proposal orproposals considered most likely to meet the criteria enumerated in sectionc. and the needs of the region.

      e.   Following notification of each party state of the results of thepreliminary selection process, the Commission shall:

      1.   Authorize any person whose proposal has been selected to pursue licensureof the regional facility or facilities in accordance with the proposaloriginally submitted to the Commission or as modified with the approval of theCommission; and

      2.   require the appropriate state or states or the U.S. Nuclear RegulatoryCommission to process all applications for permits and licenses requiredfor the development and operation of any regional facility or facilitieswithin a reasonable period from the time that a completed application issubmitted.

      f.   The preliminary selection or selections made by the Commission pursuantto this Article shall become final and receive the Commission's approvalas a regional facility upon the issuance of a license by the licensingauthority. If a proposed regional facility fails to become licensed, theCommission shall make another selection pursuant to the procedures identifiedin this Article.

      g.   The Commission may by two-thirds affirmative vote of its membership,revoke the membership of any party state which, after notice and hearingshall be found to have arbitrarily or capriciously denied or delayed theissuance of a license or permit to any person authorized by the Commissionto apply for such license or permit. Revocation shall be in the same manneras 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 diminishor otherwise impair the jurisdiction of any federal agency expressly conferredthereon by the Congress;

      2.   prevent the application of any law which is not otherwise inconsistentwith this compact;

      3.   prohibit or otherwise restrict the management of waste on the sitewhere it is generated if such is otherwise lawful;

      4.   affect any judicial or administrative proceeding pending on the effectivedate of this compact;

      5.   alter the relations between, and the respective internal responsibilitiesof, the government of a party state and its subdivisions; and

      6.   affect the generation or management of waste generated by the federalgovernment or federal research and development activities.

      b.   No party state shall pass or enforce any law or regulation which isinconsistent with this compact.

      c.   All laws and regulations or parts thereof of any party state whichare inconsistent with this compact are hereby declared null and void forpurposes of this compact. Any legal right, obligation, violation or penaltyarising under such laws or regulations prior to enactment of this compactshall not be affected.

      d.   No law or regulation of a party state or of any subdivision orinstrumentality thereof may be applied so as to restrict or make more costly orinconvenient access to any regional facility by the generators of another partystate 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 ofArkansas, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, NorthDakota and Oklahoma. Such initial eligibility shall terminate onJanuary 1, 1984.

      b.   Any state may petition the Commission for eligibility. A petitioningstate shall become eligible for membership in the compact upon the unanimousapproval of the Commission.

      c.   An eligible state shall become a member of the compact and shall bebound by it after such state has enacted the compact into law. In no eventshall the compact take effect in any state until it has been entered intoforce as provided for in section f. of this Article.

      d.   Any party state may withdraw from this compact by enacting a statuterepealing the same. Unless permitted earlier by unanimous approval of the Commission, such withdrawal shall take effect five years after the governorof the withdrawing state has given notice in writing of such withdrawalto each governor of the party states. No withdrawal shall affect any liabilityalready incurred by or chargeable to a party state prior to the time of suchwithdrawal.

      e.   Any party state which fails to comply with the terms of this compactor fulfill its obligations hereunder may, after notice and hearing, haveits privileges suspended or its membership in the compact revoked by theCommission. Revocation shall take effect one year from the date such partystate receives written notice from the Commission of its action. TheCommission may require such party state to pay to the Commission, for a periodnot toexceed five years from the date of notice of revocation, an amount determinedby the Commission based on the anticipated fees which the generators ofsuch party state would have paid to each regional facility and an amountequal to that which such party state would have contributed in accordancewith section d. of Article III, in the event of insufficient revenues. TheCommission shall use such funds to ensure the continued availability ofsafe and economical waste management facilities for all remaining partystates. Such state shall also pay an amount equal to that which such partystate would have contributed to the annual budget of the Commission if suchparty state would have remained a member of the compact. All legal rightsestablished under this compact of any party state which has its membershiprevoked shall cease upon the effective date of revocation; however, any legalobligationsof such party state arising prior to the effective date of revocation shallnot cease until they have been fulfilled. Written notice of revocationof any state's membership in the compact shall be transmitted immediatelyfollowing the vote of the Commission, by the chairman, to the governor ofthe affected party state, all other governors of the party states and theCongress of the United States.

      f.   This compact shall become effective after enactment by at least threeeligible states and after consent has been given to it by the Congress.The Congress shall have the opportunity to withdraw such consent every fiveyears. Failure of the Congress to withdraw its consent affirmatively shallhave the effect of renewing consent for an additional five-year period.The consent given to this compact by the Congress shall extend to any futureadmittance of new party states under sections b. and c. of this Article andto 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 compactunder section e. of this Article shall not affect the applicability of thiscompact to the remaining party states.

      h.   This compact shall be terminated when all party states have withdrawnpursuant to section d. of this Article.

ARTICLE VIII. PENALTIES

      a.   Each party state, consistent with its own law, shall prescribe andenforce penalties against any person for violation of any provision ofthis compact.

      b.   Each party state acknowledges that the receipt by a regional facilityof waste packaged or transported in violation of applicable laws andregulations can result in sanctions which may include suspension or revocationof 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 competentjurisdiction to be contrary to the Constitution of any participating stateor of the United States or the applicability thereof to any government,agency, person or circumstance is held invalid, the validity of the remainderof this compact and the applicability thereof to any government, agency,person or circumstance shall not be affected thereby. If any provision ofthis compact shall be held contrary to the Constitution of any stateparticipating therein, the compact shall remain in full force and effect as tothe state affected as to all severable matters. The provisions of this compactshall be liberally construed to give effect to the purpose thereof.

      History:   L. 1982, ch. 254, § 1;L. 1993, ch. 104, § 1; July 1.