ML20054E788
| ML20054E788 | |
| Person / Time | |
|---|---|
| Issue date: | 05/27/1982 |
| From: | Kerr G NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Peery R SOUTHERN STATES ENERGY BOARD |
| Shared Package | |
| ML20054E789 | List: |
| References | |
| NUDOCS 8206140238 | |
| Download: ML20054E788 (31) | |
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UNITED STATES
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Mr. Raynond J. Peery, Esquire Resource Attorney Southern States Energy Board One Exchange Place, suite 1230 2300 Peachford Road Atlanta, GA 30338
Dear Mr. Peery:
Thank you for supplying our Regional State Liaison Officer, Robert E.
Trojanowski, NRC, Region II, with a copy of the draft (February 12, 1982), "Mid-Atlantic Low-level Radioactive Waste Compact," which we received for review on April 22, 1982. We would like to congratulate the negotiators from Delaware, Kentucky, Maryland, North Carolina, Puerto Rico, the District of Columbia, Virgin Islands, Virginia and West Virginia who have developed an excellent working draft.
As you have requested on the behalf of the. party States, we have conducted a review of the compact and offer you our comments. There are five major areas of concern to us: (1) the scope of the compact; (2) potential conflict of interest in the Compact Commission; (3) the restriction on export of waste; (4) State inspection and enforcement of NRC licensees; and (5) the settlement of disputes.
Following the discussion of these items are some other comments that may be helpful.
1.
The scope of the compact In Article II there are several interlocking definitions that support the policy of waste management as stated in Article I and thus raise a question about the scope of the compact.
" Facility" is defined as a parcel of land or site which is used or is being developed for the
" treatment", " storage", or " disposal" of low-level radioactive waste.
" Storage" is defined as the holding of waste for treatment or disposal.
" Treatment" is defined very broadly as any method, technique or process, including storage for decay, designed to change the physical, chemical or biological characteristics or composition of the waste to render such waste safer for transport, amenable for recovery, convertible to another usable material, or reducible in volume. Thus, under the con. pact, a regional facility, if it is approved by the Compact Commission for the benefit of the party St;ates, can be one established merely to hold waste for decay and recycle or recovery.
The central concept of the compact as described in Article III(b) is that "each party State shall have the right to have all wastes generated within its borders managed at regional facili ties." The emphasis is on management not just disposal of all 8206140238 820S27 PDR STPRO ESGGE
Mr. Raymond J. Peery, Esquire wastes generated in the region. Thus, in terms of the interlocking definitions and the central concept, the regional program suggested by the draft language goes far beyond " disposal" of low level waste into practically every aspect of low-level radioactive waste handling.
This policy of " waste management" is carried out by the Compact Commission in Article IV. Article IV(e) describes the Commission authority to establish advisory committees "on any and all matters pertaining to the management of waste." Article IV(g)(1)(D) empowers the Compact Commission to regulate the management of waste within the region. Article IV(g)(2) allows the Commission to " appear as an intervenor or party in interest before any court of law, federal, state or local agency, board or commission that has jurisdiction over the management of wastes." Article IV(h)(4) requires that the Commission " adopt a regional management plan which will designate site locations for the establishment of needed regional facilities." The " regional management plan" guidelines are described in Article V.
Of special concern to us is the fact that the Compact Commission may take on the functions of a regional safety and environmental regulatory authority regarding all aspects of low-level radioactive waste management and therefore appear to duplicate the authority of the host Agreement State and/or the NRC. There is no provision under Section 274b of the Atomic Energy Act for NRC's entering into an agreement with an interstate commission or board, but only with a State. We do not believe regulatory frameworks beyond those currently provided in the Atomic Energy Act need be established.
In our view the Low-Level Radioactive Waste Policy Act (P.L.96-573)
(Act) only provides authority to enter into regional interstate compacts limited to regional disposal facilities for low-level waste, as stated in Section (4)(a)(2)(A). This section is the operative grant of authority to the States, and establishes the scope of the authority granted to the States under the Act. The States' authority is further limited by the Act's definition of disposal as the " isolation" of low-level waste.
l Thus, we believe the bet;ter view of the Act is that its scope is limited to disposal, as commonly understood to be activities at the disposal site. The Act does not confer any additional authority over that which might already be obtained in a State with respect to generation of wastes, transportation, volume reduction activities at non-disposal sites, and similar activities that do not constitute disposal. Thus, Article I, l'olicy and Purpose, which states that it is the policy of the Act to authorize a compact for the management of low-level radioactive waste goes beyond the intent of the Act.
m
- Mr. Raymond J. Peery, Esquire l Informal discussion with representatives of some of the compacts indicate their interest is in the economic aspects rather than tha health, safety and environmental.
If th!s is indeed the case, we recommend that it be spelled out.
2.
Potential conflict of interest in the Compact Commission Under Article IV(g)(7), "The (Compact) Commission may develop and operate a regional facility or participate in such development and operation."
This function appears to be in conflict with Article IV(g)(1)(D) that empowers the Compact Commission to regulate the management of waste within the region. Thus, we have the Compact Commission playing the role of developer and regulator which is a potential organizational conflict of interest.
Furthermore, there appears to be another conflict with the regulatory responsibilities of the host State which has the authority to license any facility within its borders according to Article VII(h). We suggest that the organizational conflict of interest can be avoided by substituting the word oversee for regulate in Article IV(g)(1)(D).
3.
The restriction on export of waste In Article IV(g)(1)(A), the Compact Commission is empowered to " enter into agreements with any person, State, or group of States for the right of access to regional facilities and for the right of access to facilities outside the region for wastes generated within the region." Article IV(g)(5) empowers the Compact Commission to prohibit the exportation of waste from the region after January 1,1986 Article III(c) states that
" party States or generators may, subject to Commission approval pursuant to Article IV, negotiate for the right of access to a facility outside the region." Article IX(g) states that "the consent given to this compact by the Congress shall extend...to the power of the Commission to l
restrict the... exportation of waste pursuant to Article III."
- Finally, 1
Article X(b) states that "it shall be a violation of this compact for any person to export from the region waste which is generated within the region," if the Commission bans the exportation of waste.
The Low-Level Radioactive Waste Policy Act allows the State restriction only on the import of out-of-region waste for disposal in a regional site. Although economic motives underlying the restriction on export are understandable, the restriction goes beyond the terms of the Act, and could be viewed as an unauthorized and unconstitutional burden of interstate commerce. On the assumption that by 1986 all States will be included in regions with mutually reinforcing restrictions on importation, we would question the need for a stated prohibition on export, l
1
~
Mr. Raymond J. Peery. Esquire 4 State inspection and enforcement of NRC licensees Article III(d) raises questions of the apprcpriateness of State inspection and enforcement activities of NRC licensees. We believe the onsite inspection of NRC licensees can be satisfactorily accommodated by an agreement between NRC and each of the States in the compact. Specifically, under section 2741 of the Atomic Energy Act, NRC has the authority to enter into agreements with States to perform inspections. We have drafted a proposed agreement (enclosed) which would authorize a State to inspect waste packaging on the premises of NRC licensees. Any State law enforcement based on findings from these inspections would be under State law, not under the Atomic Energy Act. A section 2741 agreement is separate and distinct from the agreement entered into between NRC and a State under the " Agreement State" regulatory program; the latter is accomplished only by entering into an agreement under section 274b of the Atomic Energy Act. Of the States listed in Article IX, the States 1
of Kentucky, Maryland and North Carolina are Agreement States. Delaware, Puerto Rico, the District of Columbia, Virgin Idands, Virginia and West i
Virginia are not.
In our view a 2741 agreement can be entered into by a State, the District of Columbia, Puerto Rico and the Virgin Islands 4
l whether or not it has a 274b agreement.
5.
The settlement of disputes Article IV(m) of the compact provides for judicial review of disputes between the Commission and a party State in a U. S. Court of Appeals.
The review provision is elaborate, containing both procedural. and substantive rules to be applied by the reviewing court. We believe that, for the reasons discussed below, such a review provision in the compact is of questionable legal merit, and probably not necessary.
First, the long standing jurisdictional statutes applicable to Courts of Appeal limit their jurisdiction to review of decisions of U. S. District Courts (28 U.S.C.1291) and the final orders of selected federal regulatory agencies (28 U.S.C 2341, the Hobbs Act). These statutes do not confer i
original jurisdiction in the Courts of Appeal for adjudicating disputes among States involving interstate compacts.
Rather, such cases have been seen as disputes subject to the original and exclusive jurisdiction l
of the U.S. Supreme Court under 28 U.S.C.1251. See e.g., Arizona v. California l
373 U.S. 546 (1963).
The U.S. Supreme Court has also viewed a Compact Commission as if it were a State.
See Petty v. Tennessee-Missouri Bridge Comm. 359 U.S. 275 (1959).
If that view continues, then a dispute between a party State and the Compact Commission could be, for jurisdictional purposes, a dispute among States and subject to original and exclusive jurisdiction
[-
Mr. Raymond J. Peery, Esquire of the U.S. Supreme Court. On the other hand, if the Compact Commission is considered to be a private citizen for purposes of judicial review, then a dispute between it and a party State that involves a question of federal law (i.e., interpretation or application of the compact or ratifying legislation) belongs in a federal district court. Under either of these circumstances (which would appear to exhaust the universe of possible compact cases triable in the federal system) current jurisdictional statutes are adequate to provide for timely review, and there is no need for Article IV(m) in the compact.
The presence of Article IV(m) could also have a negative effect on l
ratification in the Congress.
Compacts are reviewed in the Judiciary Committees of both Houses. These Committees also have legislative jurisdiction over federal court jurisdiction. Article IV(m) raises questions of Constitutional interpretation which those Committees may feel necessary to be examined.
It would be a disservice to the compact States to allow the compact ratification to become entangled in the resolution of an unnecessary problem. See California v. Arizona 440 U.S. 59 (1979) for a brief insight into the constitutional problems that can arise when the original jurisdiction of the Supreme Court under Article III of the Constitutio.. is involved.
Some other specific comments on the draft Cot 7act that may be helpful follow:
Article I. Policy and Purpose l
l 1.
Article I sets forth that "the party states recognize and declare that each state is responsible for providing for the availability i
l of capacity either within or outside the state for the disposal of i
low-level radioactive waste generated within its borders, except for waste generated as a result of defense activities of the federal government or federal research and development activities."
In the Low-Level Radioactive Waste Policy Act, the only kinds of low-level radioactive waste excluded from consideration in low-level radioactive waste disposal are those wastes that originate as a result of defense activities of the U. S. Department of Energy or federal research and development activities.
(This restriction is correctly stated in Article VIII(a)5 of the Compact.) The Act does not extend this exclusion to waste generated resultin activities from the U. S. Department of Defense (D00)g from defense
. Therefore, the policy of exclusion as described in Article I of the Compact may be too broad and is inconsistent with Article VIII(a)(5) of the Compact.
2 The last paragraph of Article I discusses items that are implicit in Congressional consent to the Compact and that are existing regulatory agency responsibilities. Have you considered placing
~. s Mr. Raymond J. Peery, Esquire this language in the suggested Congressional ratification bill in a separate section outside the compact language adopted by State j
legislatures?
Article II. Definitions 1.
Article II(f) gives a definition for generator that appears to be broader than what is conventionally used.
For example, as defined, a "genarator" means any person who produces or possesses low-level radioactive waste in the course of or as an incident to... processing...
or other industrial or commercial activity." This definition can be construed to include persons involved in the collection, transportation, treatment. storage, or disposal of low-level radioactive waste generated within the region because only persons involved in these activities outside the region are excluded from this definition.
2.
Article II(r) gives a definition of " treatment" that considers as an objective the safety of transport. We believe that safety for disposal is an equally important objective. Accordingly, we suggest that you alter the definition to read:
" treatment" means any method, technique or process, including storage for decay, designed to change the physical, chemical, or biological characteristics or composition of any waste in order to render such waste safer for transport and/or disposal, amenable for recovery, convertible to another usable material or reduced in volume.
(Underlining indicates the added wording.)
Article IV. The Commission 1.
Article IV(h)(3) authorizes the Compact Commission to hear and l
negotiate disputes which may arise between the party States regarding this compact. We suggest that this section be reworded to exclude regulatory disputes pertaining to health and safety issues, which should be resolved by the licensing authority.
2.
Article IV(1)(3)(B) refers to fees for which there is no antecedent in Article IV(1)(3). We suggest that the reference to " fees" be deleted.
l 3.
This compact does not outline whether the party States are able to impose surcharges on waste generators to recover costs incurred for inspection, enforcement, and emergency response functions. Have you considered permitting party States to seek compensation from waste generators for performing these regulatory functions? (See Recommendations 3 and 7, " Report to the State Planning Council on Radioactive Management, Prepared by the Transportation Workshop. May 1,1981.)
i.
~
Mr. Raymond J. Peery, Esquire Article VII. Development and Operations of Facilities 1
The requirements under Article VII(a) and (b) could be in conflict.
Ordinarily, a single host State agency should not be responsible for both the timely developmunt and operation of a facility and its regulation. To some extent this conflict can be minimized by the host State assigning responsibility for development to an agency that is separate from the regulatory agency, if an Agreement State.
However, we do realize that the Low-Level Radioactive Waste Policy Act has given the States the responsibility for providing for the availability of capacity for low-level radioactive waste so some conflict may be inherent. Therefore, vigilence will be necessary on the part of NRC and/or the Agreement State to avoid compromising the State regulatory agency's. ability to make independent judgments on public health and safety.
2.
Article VII(b) says that "To the extent authorized by federal law, a host State shall regulate and license any facility within its borders and shall be responsible for the extended care of such facility." This section may appear to mandate that host States become Agreement States under Section 274b of the Atomic Energy Act of 1954, as amended. The U. S. Nuclear Regulatory Commission (NRC) discontinues regulatory authority only when the Agreement State has enacted its own State laws and promulgated its own regulations that are compatible with those of the NRC and entered into an Agreement with NRC. Therefore, we recommend that you change the first phrase to read: "To the extent authorized by federal and State law..."
(Underlining indicates the added wording.)
3.
We believe that if the Compact Commission is to develop and operate a regional facility under Article IV(g)(7), it should not also have the authority to set surety requirements and approve fees for the operation and closure of the facility under Article VII(c) and (d).
This would effectively enable the Commission, as the license applicant, to det. ermine the amount of financing necessary to protect public health and safety during the operation, closure, and long-term care of the proposed facility. To avoid a situation where the host State might feet obligated to deny the license, refuse site ownership, or take some other action that could jeopardize its membership and strain inf ar-state relations within the compact, the draft Compact should be ameded to clarify that the Commission may not exercise its authority to set surety requirements and approve disposal fees at a facility it will be developing and operating, either directly as a licensee or indirectly by contract.
4.
It is not clear to us what is intended by Articles VII(c) and (d).
Our understanding of the usual intent of a surety is to provide for closure and post closure expenses.
Items such as the development
.m Mr. Raymond J. Peery, Esquire of the facility, which is a capital cost, and operation are normally covered out of revenues. We believe fees, to be collected from users, are expected to cover regulatory costs. These provisions should be clarified.
Article X. Penalties 1.
It would be helpful if the introductory sentence of Article X were clarified with regard to whose violations are enfora.eable under State law. We believe that the sentence would be clearer if violations are limited to persons other than party States. Accordingly, the introductory sentence would read:
" Violations of this compact by persons other than party States shall be enforceable as a matter of State law."
We continue to believe that the Mid-Atlantic States are to be complimented for their work on compact formation. We look forward to working with you to achieve a successful conclusion of this effort.
Sincerely, A - d. L /.e a -
h.WayneKerr, Director
& Office of State Programs
Enclosure:
Proposed 2741 Agreement
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ti WASHINGTON, D. C. 20656
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... 9 PROPOSED 2741 AGREEMENT The State of (State) is.a member of the Compact which was ratified by Congress on pursuant to the Low-level Radioactive Waste Policy Act. (Waste Policy Act) P.L.96-573. The Waste Policy Act was enacted by Congress to provide for and encourage states to manage low-level radioactive waste on a regional basis, and to this end authorizes states to enter into such ccupacts as may be necessary to provide for the establishment and operation of regional disposal facilities for low-level raiioactive waste.
The Conpact contemplates that the State will make periodic unannounced inspections of the premises of icw-levei radioactive waste packaging and transport activities and areas of generators located within its borders if shipments of such waste are destined for a low-!evel waste facility located in a Compact state.
The United States TJuclear Regulatory Ccemission (NRC or Ccmmission) has the statutory responsibility to inspect its licensees to datennine canpliance with fiRC requirements, including requirements partaining to the shipment, packaging and transportation of low-level radioactive waste.
In the exercise of this responsibility, the Commission regularly conducts a eview of the transportation programs of its licensees including the licensees' proceares for quality assurance, packaging, marking, labeling and loading of vehicles.
This transportatien prcgram review usually has been founc adequate to ensure licensee ccmpliance with the Canaission's regulations regarding
'ow-level radicactive waste packaging and tr' nspcrtation without the neea a
for Ca mission inspection of each individual shipment.
.., =.
Under Section 2741. of the Atomic Energy Act of 1954, as amended, the Commission in carrying out its licensing and regulatory responsibilities under the Act is authorized to enter into agreements with any State to perform inspections or other functions on a cooperative basis as the Commission deems approriate. While the Commission does not normally conduct on-site inspections of individual low-level waste shipments of its licensees, it desires to foster the goals of the Waste Policy Act and the C ompact.
and the NRC Accordingly, this agreenent between the State of establishes mutually agreeable procedures whereby the State may perfonn inspection functions for and on behalf of the Canmission at certain NRC reactor and materials licensees' facilities which generate low-level radioactive waste.
It is hereby agreed bebdeen the Commission and the State as follows:
1.
The Commission hereby authorizes the State to perform, for and on behalf of the Commission, the following functions with respect to low-level radioactive waste, as defined in Section 2(2) of the Waste Policy Act, in the possession of Canmission ifcensees located within the State:
a)
Inspections to detennine complian,ce with the Commission's rules and regulations regarding the packaging and transportation of
low-level waste destined for disposal at a camercial low-level radioactive waste disposal site, and b)
Notification of Camission licensees and the Commission in writing of any violation of Commission regulations disclosed by such inspections, and to request the licensees concerned to advise the State and the Commission of corrective action taken or to be taken.
The Camission will not evaluate the State's ability to' perform such functions.
Such functions as are performed by the State pursuant hereto shall be perfonned witho0t cost or expense to the Commission.
2.
The authority to inspect NRC licensees pursuant to the preceding paragraph is limited to the licensee's low-level waste packagin'g, packaging procedures, and transport vehicles.
3.
In taking any action authorized hereunder, the State shall not undertake to amend or revoke C mmission licenses. This agreement.
l however, shall not be construed to preclude the State fra exercising any authority lawfully available to it under its own laws.
i 4.
Efforts will be made by both parties to avoid duplicative enforcement action against an NRC licensee for the same violation.
However, this is not meant to preclude appropriate cmplementary actions for the same
d NRC violation, such as termination of a ~ user permit by the State an enforcenent action.
Nothing herein shall be deemed to authorize the State to inspect 5.
hich is otherwise enter the premises of any licensee of the Commission w a Federal instrumentality without the prior consent of the licensee.
h Nothing herein shall be deemed to preclude or affect in any ma 6.
authority of the Commission to perform any or all of the functions described herein.
Nothing herein is intended to restrict or expand the statutory 7.
f any authority of NRC or the State or to affect or vary the terms o agreenent in effect under the authority of Section 274b. of.the Atomic Energy Act of 1954, as amended.
i Nothing herein shall be deemed to pennit the State to impose 8.
or transport standards beyond those contained in Federal stand The principal NRC contact under this agreement shall be 9.
The principal State contact shall be (Regional-Administrator).
9 e
' " - " - - - - - ~ _,,..
5-
- 10. This Agreement shall became effective upon signing by the
. State of and
, Nuclear Regulatory Commission and shall remain in effect so long as the State renains a member of the Compact unless sooner tenninated by either party on thirty days prior written notice.
For the Nuclear Regulatory Commission t
For the State of l
t I
e MID-ATLANTIC LOW-LEVEL RADIOACTIVE WASTE COMPACT t
I r
As Agreed to l
February 12, 1982 l
l l
DRAFT 2-12-82 ARTICLE I.
POLICY AND PURPOSE 1
There is hereby created the Mid-Atlantic Interstate 2
Low-Level Radioactive Waste Compact.
The party states recognize 3
and declare that each state is responsible for providing for the 4
availability of capacity, either within or outside the state, for 5
the disposal of low-level radioactive waste generated within its 6
borders, except for waste generated as a result of defense activities 7
of the fcderal government or federal research and development 8
activities.
They also recognize that the management of low-level s
9 radioactive waste is handled most efficiently on a regional basis.
10 The party states further recognize that the Congress of the 11 United States, by enacting the Low-Level Radioactive Waste Policy 12 Act (P.L.96-573), has provided for and encouraged the development 13 of low-level radioactive waste compacts as a tool for managing 14 such waste.
The party states recognize that the safe and efficient 15 management of low-level radioactive waste generated within the 16 region requires that sufficient capacity to manage such waste be 17 properly provided.
18 It is the policy of the party states tot enter into a 19 regional low-level radioactive waste management compact for the 20 purpose of providing the instrument and framework for a coopera-21 tive effort, provide sufficient facilities for the proper manage-22 ment of low-level radioactive waste generated in the region, I
23 promote the health and safety of the region, limit the number of 24 facilities required to effect,ive,1y and efficiently manage low-level 25 radioactive waste generated in the region, encourage the reduction 26 of the amounts of low-level waste generated in the region, l
1
ARTICLE I DRAFT 2-12-82 1
distribute the costs, benefits and obligations of successful 2
low-level radioactive waste management equitably among the party 3
states, and ensure the ecological and economical management of 4
low-level radioactive wastes.
5 Implicit in the Congressional consent to this compact is the 6
expectation by the Congress and the party states that the appro-7 priate federal agencies will actively assist the Compact Commission 8
and the individual party states to this compact by:
9 (a) Expeditious enforcement of federal rules, regulations 10 and laws; 11 (b) imposing sanctions against those found to be in violation 12 of federal rules, regulations and laws; and 13 (c) timely inspection of their licensees to determine their 14 capability to adhere to such rules, regulations and 15 laws.
16 17 18 19 20 21 22 23 24 25 26 2
DRAFT 2-12-82 ARTICLE II.
DEFINITIONS 1
As used in this compact, unless the context clearly requires 2
a different construction:
3 (a) " commission" means the Mid-Atlantic Interstate Low-4 Level Radioactive Waste Commission.
5 (b) " decommissioning" means the closing of a facility for 6
the purpose of preparing it for extended care.
7 (c) " disposal" means the isolation of waste from the biosphere 8
by emplacement in a land disposal facility.
9 (d) " eligible state" means a state qualified for membership 10 in this compact.
11 (e) " facility" means a parcel of land or site, together with 12 the structures, equipment and improvements thereon or 13 appurtenant thereto, which is used or is being developed 14 for the treatment, storage or disposal of low-level 15 radioactive waste.
16 (f) " generator" means any person who produces or possesses 17 low-level radioactive waste in the course of or as an 18 incident to manufacturing, power generation, processing 1
l l
19 medical diagnosis and treatment, research, or other l
l 20 industrial or commercial activity.
This does not include 21 persons who only provide a service by arranging for the 22 collection, transportation, treatment, storage or disposal i
23 of wastes generated outside the region.
24 (g) " host state" means any state wherein a site location for 25 a regional facility has been designated by the Commission.
26 i
3 1
ARTICLE II DRAFT 2-12-82 1
(h) " low-level radioactive waste" or " waste" means radioactive 2
waste not classified as high-level radioactive waste, 3
transuranic waste, spent nuclear fuel or by product 4
material as defined in Section lle.(2) of the Atomic 5
Energy Act of 1954, as amended.
6 (i) " management plan" means the plan the Commission has approved 7
for the storage, treatment or disposal of waste within 8
the region and the' importation and exportation of waste.
9 (j) " party state" means any state which is a signatory party 10 to this compact.
11 (k) " person" means (1) any individual, corporation, business 12 enterprise or other legal entity, either public or private:
13 and (2) any legal successor, representative, agent or 14-agency of the foregoing.
15 (1) " post closure maintenance and care" means the continued 16 observation and correction of problems of a regional facility 17 for the purposes of detecting a need for maintenance, evidence 18 of intrusion, ensuring environmental safety, and compliance 19 with applicable license and regulatory requirements.
20 (m) " region" means the area of the party states.
21 (n) " regional facility" means a facility which is located 22 within the region, and which has been approved and 23 designated by the Commission for the benefit of the 24 party states.
25 (o) " site" means geographic location.
26 4
. ARTICLE II DRAFT 2-12-82 1
(p) " state" means a state of the United States, the District 2
of Columbia, the Commonwealth of Puerto Rico, the Virgin 3
Islands or any other territorial possession of the United 4
states.
5 (q) " storage" means the holding of waste for treatment or 6
disposal.
7 (r) " treatment" means any method, technique or process, 8
including storage for decay, designed to change the 9
physical, chemical or biological characteristics or 10 composition of any waste in order to render such waste 11 safer for transport, amenable for recovery, convertible 12 to another usable material or reduced in volume.
13 (s) " waste management" means the storage, treatment, or 14 disposal of waste.
15 16 l
17 18 19 20 21 22 23 24 25 26 5
j DRAFT 2-12-82 ARTICLE III.
RIGHT AND OBLIGATIONS 1
(a) Each party state shall act in good faith in the performance 2
of acts and courses of conduct which are intended to ensure 3
the provision of facilities for regional availability and 4
usage in a manner consistent with this compact.
5 (b) Each party state shall have the right to have wastes gener-6 ated within its borders managed at regional facilities.
7 Each party state shall have the right of access to any 8
facilities made available to the region through agreements 9
entered into by the Commission pursuant to Article IV.
10 (c) Party states and generators may, subject to Commission 11 approval pursuant to Article IV, negotiate for the right 12 of access to a facility outside the region.
13 (d) To the extent authorized by federal law, each party state 14 shall enforce any applicable federal and state laws and 15 regulations pertaining to the packaging and transportation 16 of waste generated within or passing through its borders.
l 17 (e) Each party state shall provide to the Commission any data l
18 and information required by the Commission to develop a I
l 19 regional waste management plan and perform its responsi-i 20 bilities.
Each party state shall establish the capability 21 to obtain any data and information necessary to meet its 22 obligations established herein.
23 24 25 26 6
ARTICL" III DRAFT 2-12-82 1
(f) Each state shall have established the legal authority 2
necessary to ensure the acquisition of a site location for 3
the development of a regional facility and 4
the operation thereof.
5 (g) Each party state shall ensure that its legal authority 6
provided for by section (f) of this Article may be used 7
to guarantee that site locations within such state 8
designated by the Commission for development as a regional 9
facility are properly acquired, developed and operated 4
10 as such.
11 12 13 14 15 1
16 17 18 19 20 21 22 23 24 25 26 7
DRAFT 2-12-82 ARTICLE IV.
THE COMMISSION 1
(a) There is hereby created the Mid-Atlantic Interstate 2
Low-Level Radioactive Waste Commission.
The Commission 3
shall consist of one voting member from each party 4
state.
The appointing authority of each party. state 5
shall notify the Commission in writing of the identity 6
of its member and one alternate.
An alternate may set 7
on behalf of the member only in that member's absence.
8 (b) Each Commission member shall be entitled to one vote.
9 Unless specified otherwise in this compact, no action 10 of the Commission shall be binding unless a majority of 11 the total membership cast their vote in the affirmative.
12 (c) The Commission shall elect annually from among its members 13 a chairman.
The Commission shall adopt and publish, in i
14 convenient form, by-laws which are not inconsistent with 15 this compact.
16 (d) The Commission shall meet at least once a year and shall 17 also meet upon the call of the chairman or upon the call 18 of a party state member.
19 (e) The Commission may establish such advisory committees 20 as it deems necessary for the purpose of advising the 21 Commission on any and all matters pertaining to the 22 management of waste.
23 (f) The office of the Commission shall be in a party state.
24 The commission may appoint or contract for and compensate 25 such limited staff necessary to carry out its duties and 26 functions.
The staff shall serve the Commission and 8
,,b c_.-
ARTICLE IV DRAFT 2-12-82 1
shall not have the power to make policy decisions.
The 2
staff shall serve at the commission's pleasure irrespec-3 tive of the civil service, personnel or other merit laws 4
of any of the party states or the federal government and 5
shall be compensated from funds of the commission.
In 6
selecting any staff, the Commission shall assure that 7
the staff has adequate experience and formal training co 8
carry out such functions as may be assigned to it by 9
the Commission.
10 (g) In addition to any general powers the Commission has, it Al is specifically empowered to do the following.
12 (1) Notwithstanding any other provision of this compact 13 and in a manner not inconsistent therewith, the 14 Commission may:
15 (A) enter into agreements with any person, state, or i
16 group of states for the right of access to regional' 17 facilities outside the region for waste generated 18 within the region; and 19 (B) enter into agreements with any person, state or 20 group of states for the right of access to 21 regional facilities within the region for waste 22 generated outside the region; and 23 (C) approve the shipment of waste by a generator to 24 a location other than a regional facility.
25 26 9
ARTICLE IV DRAFT 2-12-82 1
(D) regulate, consistent with the managemens plan, 2
the management of waste within the region.
3 (2) The Commission may appear as an intervenor or party 4
in interest before any court of law, federal, state 5
or local agency, board or commission that has juris-6 diction over the management of wastes.
In order to 7
represent its views, the Commission may arrange for 8
any expert testimony, reports, evidence or other 9
participation as it deems necessary.
10 (3) The Commission may take such action not inconsistent 11 with this compact as is reasonable and necessary to 12 perform its duties and powers.
13 (4) The Commission may review the emergency closure of 14 a facility and determine the appropriateness of such 15 closure and take whatever actions are necessary to 16 ensure that the interests of the region are protected.
17 (5) The Commission may, after January 1, 1986, prohibit 18 the importation of waste into the region for the 19 purposes of management, and may prohibit the exporta-20 tion of waste from the region for the purposes of 21 management.
22 (6) The Commission may, by a two-thirds vote of the member-23 ship, suspend the privileges or revoke the membership 24 of a party state.
25 26 10
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7--
m ARTICLE IV DRAFT 2-12-82 1
(7) The Commission may develop and operate a regional 2
facility or participate in such development and 3
operation.
This authority may include, but is not 4
limited to, any funding which may be required to 5
purchase the site for developing, licensing and 6
operating a regional facility.
The funds neces-7 sary for such Commission participation may be 8
included in the Commission's annual budget.
9 (8) The Commission may in accordance with the regional 10 waste management plan, designate regional facilities.
11 (9) The Commission may issue bonds under such tsrms and 12 conditions as it may determine to pay any costs 13 incurred in connection with any of its lawful purposes.
14 Such bonds shall not be deemed to constitute a debt 15 or a pledge of the faith and credit of any of the 16 individual party states, or any political subdivision 17 thereof,.but such bonds shall be payable as to prin-18 cipal and interest solely from the specific sources 19 designated by the Commission for such purpose.
20 (h) In addition to any general duties the Commission has, it al shall have the following specific duties.
22 (1) The Commission shall receive and act on the petition 23 of a non-party state to become a party state.
24 (2) The Commission shall submit an annual report to, and 25 otherwise communicate with, the governors and the 26 presiding officers of the legislative bodies of the 11
ARTICLE IV DRAFT 2-12-82 1
party states regarding the activities of the Commission.
2 (3) The Commission shall hear and resolve disputes which 3
may arise between the party states regarding this 4
Compact.
5 (4) The Commission shall, in accordance with the proce-6 dures and criteria developed pursuant to Article V, 7
adopt a regional management plan which will designate 8
site locations for the development of needed regional 9
facilities.
10 (5) The Commission shall annually adopt a budget.
11 (i) Funding of the budget of the Commission shall be provided 12 as follows:
13 (1) each eligible state, upon becoming a party state, shall 14 pay $50,000 to the Commission which shall be used for 15 the initial administrative costs of the commission; and 16 (2) until such time that at least one regional facility is i
17 in operation and is accepting waste for management, 18 each party state shall pay a share of the Commission's 19 budget.
A party state's share shall be a sum based on 20 the amount of waste generated within such state as 21 a proportion of the total amount of waste generated 22 within the region.
1 23 (3) a surcharge shall be levied by the Commission and 24 collected by the operator of each regional 25 facility on all users of such facility which is 26 based upon the annual volume of wastes accepted 12
ARTICLE IV DRAFT 2-12-82 1
at such facility as a portion of the total annual 2
volume of wastes accepted at all regional facili-3 ties, the total of which:
4 (A) Shall be sufficient to cover the annual budget 5
of the Commission; and 6
(B) shall be paid to the Commission, provided, however, 7
that each operator of a regional facility collect-8 ing such fees or surcharges may retain a portion 9
of the collection sufficient to cover its admini-10 strative costs of collection, and that the remainder 11 be sufficient only to cover the approved budget 12 of the Commission.
13 (j) The Commission shall keep accurate accounts of all 14 receipts and disbursements.
An independent certified 15 public accountant shall annually audit all receipts and 16 disbursements of Commission funds, and submit an audit 17 report to the Commission.
Such audit report shall be 18 made a part of the annual report of the Commission i
19 required by this Article.
l 20 (k) The Commission may accept for any of its purposes and l
21 functions any and all donations, grants of money, equip-22 ment, supplies, materials and services (conditional or l
23 otherwise) from any state or the United States or any i
24 i
25 26 13 l
j
, ARTICLE IV DRAFT 2-12-82 1
subdivision or agency thereof, or interstate agency, 2
or from any institution, person, firm or corporation,
[
3 and may receive, utilize and dispose of the same.
The 4
nature, amount and condition, if any, attendant upon 5
any donation or grant accepted pursuant to this paragraph 6
together with the identity of the donor, grantor or 7
lendor, shall be detailed in the annual report of the 8
Commission.
9 (1) (1) The Commission herein established is a legal entity 10 separate and distinct from the party states and shall 11 be so liable for its actions.
Liabilities of the Commis-12 sion shall not be deemed liabilities of the individual 13 party states.
Members of the Commission shall not be 14 personally liable for actions taken by them in their 15 official capacity.
16 (2) Except as otherwise provided herein, nothing in this 17 compact shall be construed to alter the incidence of 18 liability of any kind for any act, omission, course of 19 conduct, or on account of any causal or other relation-20 ships.
Generators, transporters of wastes, owners and 21 operators of sites shall be liable for their acts, 32 omissions, conduct, or relationships 'n accordance 23 with all laws relating thereto.
24 25 26 14
ARTICLE IV DRAFT 2-12-82 1
(m) All actions of the Commission shall be taken in accordance 2
with its by-laws and this compact.
Judicial review of 3
Commission decisions by party states, shall be allowable 4
only as provided hereinafter.
5 (1) only final decisions of the Commission are subject to 6
judicial review.
7 (2) Standing to seek judicial review is limited to party 8
states.
9 (3) Any party state aggrieved by a final decision of the 10 Commission may obtain judicial review of such decisions 11 in the United States Court of Appeals in the circuit 12 wherein the Commission maintains its headquarters, 13 by filing in such court a petition for review within 14 30 days after the Commission's final decision.
15 Proceedings thereafter shall be in accordance with the 16 rules of procedure applicable in such court.
17 (4) The court shall not substitute its judgement for that 18 of the Commission as to the weight of the evidence on 19 questions of fact.
The court may affirm the decision l
20 of the Commission or remand the case for further 21 proceedings if it finds that the petitioner has been 22 aggrieved because the findings, inferences, conclusions 23 or decisions of the Commission are:
24 25 26 15 4
ARTICLE IV DRAFT 2-12-82 1
(A) in violation of constitutional or' statutory 2
provisions:
3 (B) in excess of the statutory authority of the 4
Commissiont 5
(C) made upon unlawful procedurer 6
(D) clearly erroneous in view of the reliable, 7
probative, and substantial evidence on the whole 8
recordt or 9
(E) arbitrary or capricious or characterized by abuse 10 or discretion or clearly unwarranted exercise of 11 discretion.
12 13 14 15 16 17 18 19 20 21 t
22 l
23 24 25 l
26 16 l
DRAFT 2-12-82 ARTICLE V.
REGIONAL WASTE MANAGEMENT 1
(a) The Commission shall biennially, unless otherwise required, 2
adopt and amend a regional waste management plan which is intended 3
to ensure the safe and efficient management of wastes generated within 4
the region.
Nothing in this Article shall prevent the Commission from 5
conducting an ongoing assessment of the region's waste management 6
needs.
In adopting a regional waste management plan the Commission 7
shall:
8 (1) Determine, consistent with consideration for'public 9
health and safety, the. type and number of regional 10 facilities which are presently necessary and which 11 are projected to be necessary to manage the wastes 12 generated within the region; 13 (2) evaluate and assess the volume, distribution, location 14 and physical and chemical characteristics of wastes 15 generated within the region:
16 (3) evaluate and assess the type and number of waste manage-17 ment facilities in existence, under construction or 18 planned within the regien; 19 (4) conduct such hearings, require such reports, studies,
]
20 evidence and testimony as is required by its approved 21 procedures for designating site locations for develop-22 ment of needed regional facilities; 23 (b) Any party state may volunteer a site location for develop-24 ment of a regional facility, and upon two-thirds vote of 25 the Commission shall be designated as a host state.
26 17
ARTICLE V DRAFT 2-12-82 1
(c) If all regional facilities required by the regional 2
management plan are not developed pursuant to section (b) 3 or if notified that an existing regional facility will 4
be closed.
The Commisssion shall convene to designate 5
site locations for the development of needed regional 6
facilities in accordance with Article VI.
7 8
9 10 11 12 13 14 l
15 16 17 l
18 19 20 21
(
22 23 24 25 16 18
DRAFT 2-12-82 ARTICLE VI.
DESIGNATION OF REGIONAL FACILITIES 1
(a) Prior to the designation of regional facilities the 2
Commission shall adopt procedures and criteria for 3
selecting site locations for regional facilities.
In 4
developing such criteria, the Commission shall, at a 5
minimum, consider the following:
the health, safety 6
and welfare of the citizens of the party states; the 7
existence of regional facilities within each party 8
state; the minimization of waste transportation; the 9
volumes and types of wastes generated within each party 10 state; and the environmental, economic and ecological 11 impacts on the air, land and water resources of the 12 party states.
13 (b) The Commission shall conduct such public hearings, 14 require such reports, studies, evidence and testimony as 15 is required by its approved rules of order prior to 16 adopting the procedures and criteria for selecting site 17 locations for regional facilities.
18 (c) The Commission may in accordance with Article V and the 19 provisions of this Article approve and designate, by a 20 two-thirds vote, site locations for the development of 21 needed regional facilities.
22 23 24 25 26 19
DRAFT 2-12-82 ARTICLE VII.
DEVELOPMENT AND OPERATION OF FACILITIES 1
(a) Each party state, upon designation of a regional facility 2
within its borders, shall be responsible for the timely 3
development and operation of a regional facility.
A 4
party state hosting a regional facility shall ensure that 5
the facility shall operate for a period of time determined 6
by the Commission.
If the party state fails to meet its 7
responsibility the Commission may pursue the development 8
and operation of the regional facility.
9 (b) To the extent authorized by federal law, a host state 10 shall regulate and license any facility within its borders 11 and shall be responsible for the extended care of such 12 facility.
13 (c) An applicant for a license to develop and operate a regional 14 facility shall be required to post a surety by the host 15 state.
The amount of such surety shall be set by the 16 Commission and shall be sufficient to provide for the 17 development, operation, closure and projected post closure 18 maintenance and care costs of the facility.
The Commission 19 may authorize the amount of the surety to decrease as the 20 fees collected by the host state become sufficient to 21 provide for the costs which the surety is intended to 23 provide for.
23 (d) A host state may establish a fee system subject to the 24 approval of the Commission, for any regional facility 25 26 20
ARTICLE VII DRAFT 2-12-82 1
within its borders.
The fee shall be collected from 2
the users of such regional facility.
Such a fee system 3
shall be reasonable and equitable and shall provide the 4
host state with sufficient revenue to cover any costs, 5
including but not limited to the operation, closure and 6
post closure maintenance and care associated with such 7
facilities.
8 (e) A party state shall ensure that a regional facility located 9
within its borders is properly closed.
A party state shall 10 also provide for the long term post closure and maintenance 11 and care of a closed regional facility within its borders 12 so that the public health and safety of the state and region 13 are ensured.
14 (f) A party state which intends to close a regional facility 15 located within its borders shall notify the Commission 16 in writing of its intention and the reasons therefore.
17 Such notification shall be given to the Commission at 18 least six years prior to the intended date of closure.
19 This section shall not prevent an emergency closing of 20 a regional facility by a party state to protect the 21 health and safety of its citizens.
However, a party state 22 closing a regional facility for emergency reasons shall 23 notify the Commission in writing of its intention, and 24 shall, within 30 working days, demonstrate justification 25 for the closing.
26 21
~
4
\\
DRAFT 2-12-82 ARTICLE VIII.
OTHER LAWS AND REGULATIONS 1
(a) Nothing in this compact shall be construed to:
2 (1) abrogate or limit the applicability of any act of 3
Congress or diminish or otherwise impair the 4
jurisdiction of any federal agency expressly 5
conferred thereon by the Congress:
6 (2) make inapplicable to any person or circumstance 7
any other law of a party state which is not incon-8 sistent with this compact; 9
(3) prohibit any storage or treatment of waste by the 10 generator on its own premises; 11 (4) affect any administrative or judicial proceeding 12 pending on the effective date of this compact; 13 (5) affect the generation, treatment, storage or disposal i
14 of waste generated by the atomic energy defense l
15 activities of the Secretary of the U.S.
Department 16 of Energy or federal research and development activities 17 as defined in P.L.96-573.
18 (b) Any party state that passes any law or adopts any regula-19 tion which is incpnsistent with this compact may have its 20 membership in the compact revoked.
21 (c) No law or regulation of a party state or of r.ny subdivi-22 sion or instrumentality thereof may be applied so as to 23 discriminate against the generators of another party 24 state.
25 26 22
, ARTICLE VIII DRAFT 2-12-82 1
(d) For purposes of this compact, all state laws or parts 2
of laws in conflict with this compact are hereby 3
declared null and void.
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 23
DRAFT 2-12-82 ARTICLE IX.
ELIGIBLE PARTIES, WITHDRAWAL, REVOCATION, ENTRY INTO FORCE, TERMINATION 1
(a) This compact shall have as initially eligible parties tne 2
states of Delaware, Kentucky, Maryland, North Carolina, 3
Puerto Rico, The District of Columbia, Virgin Islands, 4
Virginia and West Virginia.
Initial eligibility shall 5
terminate on July 1, 1984.
6 (b) Any state not initially eligible for membership in the 7
compact may petition the Commission for eligibility.
The 8
Commission may establish such eligibility requiremente 9
as it deems appropriate.
A petitioning state shall become 10 eligible for membership in the compact upon the approval 11 of the Commission.
(c) An eligible state shall becone a member of the compact and 12 13 chall be bound by it after such state has enacted the compact 14 into law and has established the legal framework required by 15 Article III(f).
In no event shall the compact take effect in 16 any state until it has been entered into force as provided 17 for in section (f) of this Article.
18 (d) The first three states eligible to become parties to this 19 compact and appropriate the fees required by Article IV(i)(1) 20 shall immediately, upon the appointment of their Commission 21 members, constitute themselves as the Mid-Atlantic Low-Level 22 Waste Commission, shall cause legislation to be introduced l
23 in the Congress which grants the consent of the Congress 24 to this compact, and shall do those things necessary to 25 organize the Commission and implement the provisions of 26 this compact.
24 l
ARTICLE IX DRAFT 2-12-82
)
1 (e) Any party state may withdraw from this compact by 2
repealing the authorizing legislation.
However, no l
3 such withdrawal shall take effect until six years after 4
the governor of the withdrawing state has given notice 5
in writing of such withdrawal to the Commission and to 6
the governor of each party state.
No withdrawal shall 7
affect any liability already incurred by or chargeable 8
to a party state prior to the time of such withdrawal.
9 (f) Any party state which fails to comply with the terms of 10 this compact or fulfill its obligations hereunder may 11 have its privileges suspended or its membership in the 12 compact revoked by the Commission in accordance with 13 Article IV(g)(6).
Revocation shall take effect one 14 year from the date the affected party state receives 15 written notice from the Commission of its action.
All l
16 legal rights of the affected party state established r
17 under this compact shall cease upon the effective date i
18 of revocation.
However, any legal obligations of that i
19 party state arising prior to revocation shall not cease l
20 until they have been fulfilled.
Written notice of the 21 revocation of the party state's membership in the compact l
22 shall be transmitted immediately following the vote of f
I 23 the Commission by the chairman to the governor of the 24 affected, party state, all'other governors of the party 25 states and the Congress of the United States.
26 25
ARTICLE IX DRAFT 2-12-82 1*
(g) This compact shall become effective upon enactment by at 2
least three eligible states and after consent has been 3
given to it by Congress.
Congress shall have an opportu-4 nity to withdraw such consent every five years.
Failure 5
of Congress to affirmati rely withdraw its consent shall 6
have the effect of renewing consent for an additional 7
five year period.
The consent given to this compact by 8
the Congress shall extend to any future admittance of new 9
party states under section (b) and (c) of this Article 10 and to the power of the Commission to restrict the impor-11 tation or exportation of waste pursuant to Article III.
12 (h) The withdrawal of a party state from this compact under 13 aection (e) of this Article or the revocation of a 14 state's membership in this compact under section (f) 15 of this Article shall not affect the applicability of 16 this compact to the remaining party states.
17 18 19 20 21 22 23 24 25 26 26
DRAFT 2-12-82 ARTICLE X.
PENALTIES 1
Violations of this compact shall be enforceable as a matter 2
of state law.
3 (a) Each party state, consistently with its own law, shall 4
prescribe and enforce penalties. against any person not 5
an official of another state for violation of any provi-6 sion of this compact.
7 (b) If the Commission pursuant to Article III bans the 8
exportation or importation of waste, it shall be a 9
violation of this compact:
10 (1) for any person to deposit at a regional facility 11 waste not generated within the region; 12 (2) for any regional facility to accept waste not generated 13 within the region; and 14 (3) for any person to export from the region waste which 15 is generated within the region.
16 (c) Each party state acknowledges that the shipment to a host 17 state of waste packaged or transported in violation of 18 applicable laws and regulations can result in imposition 19 of sanctions by the host state which may include,-but is 20 not limited to, suspension or revocation of the violator's 21 right of access to the facility in the host state.
22 (d) A host state which withdraws from the compact prior to 23 fulfilling its obligations as such shall be assessed a 24 sum by the Commission determined by it to be necessary 25 2S 27 I
t
e ARTICLE X DRAFT 2-12-82 1
l 1
to cover any costs borne by the remaining party states 2
resulting from such withdrawal.
Such penalty shall 3
be paid to the commission.
4 5
6 7
8 9
10 11 12 13
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14 15 16 17 18 I
19 20 21 22 23 24 l
25 l
26 28 i
DRAFT 2-1-82 l
)
ARTICLE XI.
SEVERABILITY AND CONSTRUCTION 1
1 The provisions of this compact shall be severable and if phrase, 2
clause, sentence or provision of this compact is declared by a court 3
of competent jurisdiction to be contrary to the constitution of any 4
participating state or of the United States the applicability thereof 5
to any government, agency, person or circumstance is held invalid.
6 The validity of P.he remainder of this compact and the applicability 7,
thereof to any government, agency, person or circumstance shall not 8
be affected thereby.
If any provision of this compact shall be held 9
contrary to the Constitution of any state participating therein, the 10 compact shall remain in full force and effect as to the state affected 11 as to all severable matters.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 d
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