Header:
PENNSYLVANIA STATUTES
TITLE 35. HEALTH AND SAFETY
CHAPTER 39B. APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMPACT
Date:
08/31/2009
Document:
§ 7125.1. Agreement
The Commonwealth of Pennsylvania hereby solemnly covenants and agrees with the state of West Virginia, any eligible states as defined in Article 5(A) of this compact and the United States of America, upon the enactment of concurrent legislation by the Congress of the United States and by the respective state legislatures, as follows:
APPALACHIAN STATES LOW-LEVEL
RADIOACTIVE WASTE COMPACT
Preamble
Whereas, The United States Congress, by enacting the Low-Level Radioactive Waste Policy Act (42 U.S.C. § 2021b-2021d) has encouraged the use of interstate compacts to provide for the establishment and operation of facilities for regional management of low-level radioactive waste;
Whereas, Under section 4(a)(1)(A) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. § 2021d(a)(1)(A)), each state is responsible for providing for the capacity for disposal of low-level radioactive waste generated within its borders;
Whereas, To promote the health, safety and welfare of residents within, the Commonwealth of Pennsylvania and other eligible states as defined in Article 5(A) of this compact shall enter into a compact for the regional management and disposal of low-level radioactive waste.
Now, therefore, the Commonwealth of Pennsylvania and the state of West Virginia and other eligible states hereby agree to enter into the Appalachian States Low-Level Radioactive Waste Compact.
Article 1
Definitions
As used in this compact, unless the context clearly indicates otherwise:
(a) "BROKER" means any intermediate person who handles, treats, processes, stores, packages, ships or otherwise has responsibility for or possesses low-level waste obtained from a generator.
(b) "CARRIER" means a person who transports low-level waste to a regional facility.
(c) "COMMISSION" means the Appalachian States Low-Level Radioactive Waste Commission.
(d) "DISPOSAL" means the isolation of low-level waste from the biosphere.
(e) "FACILITY" means any real or personal property within the region, and improvements thereof or thereon, and any and all plant structures, machinery and equipment acquired, constructed, operated or maintained for the management or disposal of low-level waste.
(f) "GENERATE" means to produce low-level waste requiring disposal.
(g) "GENERATOR" means a person whose activity results in the production of low-level waste requiring disposal.
(h) "HAZARDOUS LIFE" means the time required for radioactive materials to decay to safe levels, as defined by the time period for the concentration of radioactive materials within a given container or package to decay to maximum permissible concentrations as defined by Federal law or by standards to be set by a host state, whichever is more restrictive.
(i) "HOST STATE" means Pennsylvania or other party state so designated by the Commission in accordance with Article 3 of this compact.
(j) "INSTITUTIONAL CONTROL PERIOD" means the time of the continued observation, monitoring and care of the regional facility following transfer of control from the operator to the custodial agency.
(k) "LOW-LEVEL WASTE" means radioactive waste that:
(1) is neither high-level waste or transuranic waste, nor spent nuclear
fuel, nor by-product material as defined in Section 11(e)(2) of the
Atomic Energy Act of 1954 as amended ; and
(2) is classified by the Federal Government as low-level waste,
consistent with existing law; but does not include waste generated as
a result of atomic energy defense activities of the Federal Government,
as defined in Public Law 96-573, or Federal research and development
activities.
(l) "MANAGEMENT" means the reduction, collection, consolidation, storage, packaging or treatment of low-level waste.
(m) "OPERATOR" means a person who operates a regional facility.
(n) "PARTY STATE" means any state that has become a party in accordance with Article 5 of this compact.
(o) "PERSON" means an individual, corporation, partnership or other legal entity, whether public or private.
(p) "REGION" means the combined geographical area within the boundaries of the party states.
(q) "REGIONAL FACILITY" means a facility within any party state which has been approved by the Commission for the disposal of low-level waste.
(r) "SHALLOW LAND BURIAL" means the disposal of low-level radioactive waste directly in subsurface trenches without additional confinement in engineered structures or by proper packaging in containers as determined by the law of the host state.
(s) "TRANSURANIC WASTE" means low-level waste containing radionuclides with an atomic number greater than 92 which are excluded from shallow land burial by the Federal Government.
Article 2
The Commission
(A) CREATION AND ORGANIZATION. (1) CREATION --There is hereby created the Appalachian States Low-Level Radioactive Waste Commission. The Commission is hereby created as a body corporate and politic, with succession for the duration of this compact, as an agency and instrumentality of the governments of the respective signatory parties, but separate and distinct from the respective signatory party states. The Commission shall have central offices located in Pennsylvania.(2) COMMISSION MEMBERSHIP --The Commission shall consist of two voting members from each party state to be appointed according to the laws of each party state and two additional voting members from each host state to be appointed according to the laws of each host state. Upon selection of the site of the regional facility, an additional voting member shall be appointed to the Commission who shall be a resident of the county or municipality where the facility is to be located. The appointing authority of each party state shall notify the Commission in writing of the identities of the members and of any alternates. An alternate may vote and act in the member's absence. No member shall have a financial interest in any industry which generates low-level radioactive waste, any low-level radioactive waste regional facility or any related industry for the duration of the member's term. No more than one-half the members and alternates from any party state shall have been employed by or be employed by a low-level waste generator or related industry upon appointment to or during their tenure of office; provided, that no member shall have been employed by or be employed by a regional facility operator. No member or alternate from any party state shall accept employment from any regional facility operator or brokers for at least three years after leaving office.(3) COMPENSATION --Members of the Commission and alternates shall serve without compensation from the Commission but may be reimbursed for necessary expenses incurred in and incident to the performance of their duties.(4) VOTING POWER --Each Commission member is entitled to one vote. Unless otherwise provided in this compact, affirmative votes by a majority of a host state's members are necessary for the Commission to take any action related to the regional facility and the disposal and management of low-level waste within that host state.(5) ORGANIZATION AND PROCEDURE--
(a) The Commission shall provide for its own organization and
procedures and shall adopt by-laws not inconsistent with this compact
and any rules and regulations necessary to implement this compact.
It shall meet at least once a year in the county selected to host a
regional facility and shall elect a chairman and vice chairman from
among its members. In the absence of the chairman, the vice chairman
shall serve.
(b) All meetings of the Commission shall be open to the public with
at least 14 days' advance notice, except that the chairman may
convene an emergency meeting with less advance notice. Each
municipality and county selected to host a regional facility shall be
specifically notified in advance of all Commission meetings. All
meetings of the Commission shall be conducted in a manner that
substantially conforms to the Administrative Procedure Act (5 U.S.C.
Ch. 5, Subch. II, and Ch. 7). The Commission may, by a two-thirds
vote, including approval of a majority of each host state's
Commission members, hold an Executive Session closed to the public
for the purpose of: considering or discussing legally privileged or
proprietary information; to consider dismissal, disciplining of or
hearing complaints or charges brought against an employee or other
public agent unless such person requests such public hearing; or to
consult with its attorney regarding information or strategy in
connection with specific litigation. The reason for the Executive
Session must be announced at least 14 days prior to the Executive
Session, except that the chairman may convene an emergency meeting
with less advance notice, in which case the reason for the Executive
Session must be announced at the open meeting immediately subsequent
to the Executive Session. All action taken in violation of this open
meeting provision shall be null and void.
(c) Detailed written minutes shall be kept of all meetings of the
Commission. All decisions, files, records and data of the
Commission, except for information privileged against introduction in
judicial proceedings, personnel records and minutes of a properly
convened Executive Session, shall be open to public inspection
subject to a procedure that substantially conforms to the Freedom of
Information Act (Public Law 89-554, 5 U.S.C. § 552) and applicable
Pennsylvania law and may be copied upon request and payment of fees
which shall be no higher than necessary to recover copying costs.
(d) The Commission shall select an appropriate staff, including an
Executive Director, to carry out the duties and functions assigned by
the Commission. Notwithstanding any other provision of law, the
Commission may hire and/or retain its own legal counsel.
(e) Any person aggrieved by a final decision of the Commission which
adversely affects the legal rights, duties or privileges of such
person may petition a court of competent jurisdiction, within 60 days
after the Commission's final decision, to obtain judicial review of
said final decisions.
(f) 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 in their official capacity.
(B) POWERS AND DUTIES.
The Commission:
(a) Shall conduct research and establish regulations to promote a
reasonable reduction of volume and curie content of low-level wastes
generated in the region. The regulations shall be reviewed and, if
necessary, revised by the Commission at least annually.
(b) Shall ensure, to the extent authorized by Federal law, that
low-level wastes are safely disposed of within the region except that
the Commission shall have no power or authority to license, regulate or
otherwise develop a regional facility, such powers and authority being
reserved for the host state(s) as permitted under the law.
(c) Shall designate as "host states" any party state which generates 25
percent or more of Pennsylvania's volume or total curie content of
low-level waste generated based on a comparison of averages over three
successive years, as determined by the Commission. This determination
shall be based on volume or total curie content, whichever is greater.
(d) Shall ensure, to the extent authorized by Federal law, that
low-level waste packages brought into the regional facility for
disposal conform to applicable state and Federal regulations.
Low-level waste brokers or generators who violate these regulations
will be subject to a fine or other penalty imposed by the Commission,
including restricted access to a regional facility. The Commission may
impose such fines and/or penalties in addition to any other penalty
levied by the party states pursuant to Article 4(D).
(e) Shall establish such advisory committees as it deems necessary for
the purpose of advising the Commission on matters pertaining to the
management and disposal of low-level waste.
(f) May contract to accomplish its duties and effectuate its powers
subject to projected available resources. No contract made by the
Commission shall bind a party state.
(g) Shall prepare contingency plans for management and disposal of
low-level waste in the event any regional facility should be closed or
otherwise unavailable.
(h) Shall examine all records of operators of regional facilities
pertaining to operating costs, profits or the assessment or collection
of any charge, fee or surcharge and may make recommendations to the
host state(s) which shall review the recommendations in accordance with
its (their) own sovereign laws.
(i) Shall have the power to sue and be sued subject to Article
2(A)(5)(e) and may seek to intervene in any administrative or judicial
proceeding.
(j) Shall assemble and make available, to the party states and to the
public, information concerning low-level waste management and disposal
needs, technologies and problems.
(k) Shall keep current and annual inventories of all generators by name
and quantity of low-level waste generated within the region, based upon
information provided by the party states. Inventory information shall
include both volume in cubic feet and total curie content of the
low-level waste and all available information on chemical composition
and toxicity of such wastes.
(l) Shall keep an inventory of all regional facilities and specialized
facilities, including, but not necessarily restricted to, information
on their size, capacity and location, as well as specific wastes
capable of being managed, and the projected useful life of each
regional facility.
(m) Shall make and publish an annual report to the governors of the
signatory party states and to the public detailing its programs,
operations and finances, including copies of the annual budget and the
independent audit required by this compact.
(n) Notwithstanding any other provision of this compact to the
contrary, may, with the unanimous approval of the Commission members of
the host state(s), enter into temporary agreements with nonparty states
or other regional boards for the emergency disposal of low-level waste
at the regional facility, if so authorized by law(s) of the host
state(s), or other disposal facilities located in states that are not
parties to this agreement.
(o) Shall promulgate regulations, pursuant to host state law, to
specifically govern and define exactly what would constitute an
emergency situation and exactly what restrictions and limitations would
be placed on temporary agreements.
(p) Shall not accept any donations, grants, equipment, supplies,
materials or services, conditional or otherwise, from any source,
except from any Federal agency and from party states which are
certified as being legal and proper under the laws of the donating
party state.
(C) BUDGET AND OPERATION. (1) FISCAL YEAR --The Commission shall establish a fiscal year which conforms to the fiscal year of the Commonwealth of Pennsylvania.(2) CURRENT EXPENSE BUDGET --Upon legislative enactment of this compact by two party states and each year until the regional facility becomes available, the Commission shall adopt a current expense budget for its fiscal year. The budget shall include the Commission's estimated expenses for administration. Such expenses shall be allocated to the party states according to the following formula:
Each designated initial host state will be allocated costs equal to
twice the costs of the other party states, but such costs will not
exceed $ 200,000. Each remaining party state will be allocated a
cost of one half the cost of the initial host state, but such costs
will not exceed $ 100,000.
The party states will include the amounts allocated above in their
respective budgets, subject to such review and approval as may be
required by their respective budgetary processes. Such amounts shall
be due and payable to the Commission in quarterly installments during
the fiscal year. (3) ANNUAL BUDGET REQUEST --For continued funding of its activities, the Commission shall submit an annual budget request to each party state for funding, based upon the percentage of the region's waste generated in each state in the region, as reported in the latest available annual inventory required under Article 2(B)(k). The percentage of waste shall be based on volume of waste or total curie content as determined by the Commission.(4) ANNUAL REPORT TO INCLUDE BUDGET --The Commission shall prepare and include in the annual report a budget showing anticipated receipts and disbursements for the ensuing year.(5) ANNUAL INDEPENDENT AUDIT --
(a) As soon as practicable after the closing of the fiscal year, an
audit shall be made of the financial accounts of the Commission. The
audit shall be made by qualified certified public accountants
selected by the Commission, who have no personal direct or indirect
interest in the financial affairs of the Commission or any of its
officers or employees. The report of audit shall be prepared in
accordance with accepted accounting practices and shall be filed with
the chairman and such other officers as the Commission shall direct.
Copies of the report shall be distributed to each Commission member
and shall be made available for public distribution.
(b) Each signatory party, by its duly authorized officers, shall be
entitled to examine and audit at any time all of the books,
documents, records, files and accounts and all other papers, things
or property of the Commission. The representatives of the signatory
parties shall have access to all books, documents, records, accounts,
reports, files and all other papers, things or property belonging to
or in use by the Commission and necessary to facilitate the audit;
and they shall be afforded full facilities for verifying transactions
with the balances or securities held by depositaries, fiscal agents
and custodians.
Article 3
Rights, Responsibilities and Obligations of Party States
(A) REGIONAL FACILITIES.
There shall be regional facilities sufficient to dispose of the low-level waste generated within the region. Each regional facility shall be capable of disposing of such low-level waste but in the form(s) required by regulations or license conditions. Specialized facilities for particular types of low-level waste management, reduction or treatment may not be developed in any party state unless they are in accordance with the laws and regulations of such state and applicable Federal laws and regulations.
(B) EQUAL ACCESS TO REGIONAL FACILITIES.
Each party state shall have equal access as other party states to regional facilities located within the region and accepting low-level waste, provided, however, that the host state may close the regional facility located within its borders when necessary for public health and safety. However, a host state shall send notification to the Commission in writing within three (3) days of its action and shall, within thirty (30) working days, provide in writing the reasons for the closing.
(C) INITIAL HOST STATE.
Pennsylvania and party states which generated 25 percent or more of the volume or curies of low-level waste generated by Pennsylvania, based on a comparison of averages over the three years 1982 through 1984, are designated as "initial host states" and are required to develop and host low-level waste sites as regional facilities. The percentage of waste from each state shall be determined by cubic foot volume or total curie content, whichever is greater.
(D) EXEMPTION FROM BEING INITIAL HOST STATE.
Party states which generated less than 25 percent of the volume or curies of low-level waste generated by Pennsylvania, based on a comparison of averages over the years 1982 through 1984, shall be exempt from initial host state responsibilities. These states shall continue to be exempt as long as they generate less than the 25 percent threshold over successive 3-year periods. Once a state generates an average of 25 percent or more of the volume or curies generated by Pennsylvania over a successive 3-year period, it shall be designated as a "host state" for a 30-year period by the Commission and shall immediately initiate development of a regional facility to be operational within five years. Such host state shall be prepared to accept at its regional facility low-level waste at least equal to that generated in the state. With Commission approval, any party state may volunteer to host a regional facility. The percentage of waste from each state shall be determined by either a cubic foot volume or total curie content, whichever is greater.
(E) USEFUL LIFE OF REGIONAL FACILITIES.
Pennsylvania and other host states are obligated to develop regional facilities for the duration of this compact. All regional facilities shall be designed for at least a 30-year useful life. At the end of the facility's life, normal closure and maintenance procedures shall be initiated in accordance with the applicable requirements of the host state and the Federal Government. Each host state's obligation for operating regional facilities shall remain as long as the state continues to produce over a 3-year period 25 percent or more of the volume or curies of low-level waste generated by Pennsylvania.
(F) DUTIES OF HOST STATE.
Each host state shall:
(a) Cause a regional facility to be sited and developed on a timely
basis.
(b) Ensure by law, consistent with applicable state and Federal law,
the protection and preservation of public health, safety and
environmental quality in the siting, design, development, licensure or
other regulation, operation, closure, decommissioning, long-term care
and the institutional control period of the regional facility within
the state. To the extent authorized by Federal law, a host state may
adopt more stringent laws, rules or regulations than required by
Federal law.
(c) Ensure and maintain a manifest system which documents all
waste-related activities of generators, brokers, carriers and related
activities of generators, brokers, carriers and operators, and
establish the chain of custody of waste from its initial generation to
the end of its hazardous life. Copies of all such manifests shall be
submitted to the Commission on a timely basis.
(d) Ensure that charges for disposal of low-level waste at the regional
facility are sufficient to fully fund the safe disposal and perpetual
care of the regional facility and that charges are assessed without
discrimination as to the party state of origin.
(e) Submit an annual report to the Commission on the status of the
regional facility which contains projections of the anticipated future
capacity.
(f) Notify the Commission immediately if any exigency arises requiring
the possible temporary or permanent closure of a regional facility
within the state at a time earlier than was projected in the state's
most recent annual report to the Commission.
(g) Require that the institutional control period of any disposal
facility be at least as long as the hazardous life, as defined in
Article 1(h), of the radioactive materials that are disposed at that
facility.
(h) Prohibit the use of any shallow land burial, as defined in Article
1(r), and develop alternative means for treatment, storage and disposal
of low-level waste.
(i) Establish by law, to the extent not prohibited by Federal law,
requirements for financial responsibility, including, but not limited
to:
(i) Requirements for the purchase and maintenance of adequate
insurance by generators, brokers, carriers and operators of the
regional facility;
(ii) Requirements for the establishment of a long-term care fund to
be funded by a fee placed on generators to pay for preventative or
corrective measures of low-level waste to the regional facility; and
(iii) Any further financial responsibility requirements that shall be
submitted by generators, brokers, carriers and operators as deemed
necessary by the host state.
(G) DUTIES OF PARTY STATE.
Each party state:
(a) Shall appropriate its portion of the Commission's initial and
annual budgets as set out in Article 2(C)(2) and (3).
(b) To the extent authorized by Federal law, shall develop and enforce
procedures requiring low-level waste shipments originating within its
borders and destined for a regional facility to conform to volume
reduction, packaging and transportation requirements and regulations as
well as any other requirements specified by the regional facility.
Such procedures shall include, but are not limited to:
(i) Periodic inspections of packaging and shipping practices;
(ii) Periodic inspections of low-level waste containers while in
custody of carriers; and
(iii) Appropriate enforcement actions with respect to violations.
(c) To the extent authorized by Federal law, shall, after receiving
notification from a host state or other person that a person in a party
state has violated volume reduction, packaging, shipping or
transportation requirements or regulations, take appropriate action to
ensure that violations do not recur. Appropriate action shall include,
but is not limited to, the requirement that a bond be posted by the
violator to pay the cost of repackaging at the regional facility and
the requirement that future shipments be inspected. Appropriate action
may also include suspension of the violator's use of the regional
facility. Should such suspension be imposed, the suspension shall
remain in effect until such time as the violator has, to the
satisfaction of the party state imposing such suspension, complied with
the appropriate requirements or regulations upon which the suspension
was based and has taken appropriate action to ensure that such
violation or violations do not recur.
(d) Shall maintain a registry of all generators and quantities
generated within the state.
(H) LIABILITY.
In the event of liability arising from the operation of any regional facility and during and after closure of that facility, each party state shall share in that liability in an amount equal to that state's share of the region's low-level waste disposed of at the facility. If such liability arises from negligence, malfeasance or neglect on the part of a host state or any party state, then any other host or party state(s) may make any claim allowable under law for that negligence, malfeasance or neglect. If such liability arises from a particular waste shipment or shipments to, or quantity of waste or condition at, the regional facility, then any host or party state may make any claim allowable under law for such liability. The percentage of waste shall be based on volume of waste or total curie content.
(I) FAILURE OF PARTY STATE TO FULFILL OBLIGATIONS.
A party state which fails to fulfill its obligations, including timely funding of the Commission, may have its privileges under the Compact suspended or its membership in the Compact revoked by the Commission and be subject to any other legal and equitable remedies available to the party states.
Article 4
Prohibited Acts and Penalties
(A) PROHIBITION.
It shall be unlawful for any person to dispose of low-level waste within the region except at a regional facility unless authorized by the Commission.
(B) WASTE DISPOSED OF WITHIN REGION.
After establishment of the regional facility(s), it shall be unlawful for any person to dispose of any low-level waste within the region unless the waste was generated within the region or unless authorized to do so both by the Commission and by law of the host state in which said disposal takes place. For the purposes of this compact, waste generated within the region excludes radioactive material shipped from outside the party states to a waste management facility within the region. In determining whether to grant such authorization, the factors to be considered by the Commission shall include, but not be limited to, the following:
(a) The impact on the health, safety and environmental quality of the
citizens of the party states;
(b) The impact of importing waste on the available capacity and
projected life of the regional facility;
(c) The availability of a regional facility appropriate for the safe
disposal of the type of low-level waste involved.
(C) WASTE GENERATED WITHIN REGION.
Any and all low-level waste generated within the region shall be disposed of at a regional facility, except for specific cases agreed upon by the Commission, with the affirmative votes by a majority of the Commission members of the host state(s) affected by the decision.
(D) LIABILITY.
Generators, brokers and carriers of wastes, and owners and operators of sites shall be liable for their acts, omissions, conduct or relationships in accordance with all laws relating thereto. The party states shall impose a fine for any violation in an amount equal to the present and future costs associated with correcting any harm caused by the violation and shall assess punitive fines or penalties if it is deemed necessary. In addition, the host state shall bar any person who violates host state or Federal regulations from using the regional facility until that person demonstrates to the satisfaction of the host state the ability and willingness to comply with the law.
(E) CONFLICT OF INTEREST. (1) PROHIBITIONS --No commissioner, officer or employee shall:
(a) Be financially interested, either directly or indirectly, in a
contract, sale, purchase, lease or transfer of real or personal
property to which the Commission is a party.
(b) Solicit or accept money or any other thing of value in addition
to the expenses paid to him by the Commission for services performed
within the scope of his official duties.
(c) Offer money or anything of value for or in consideration of
obtaining an appointment, promotion or privilege in his employment
with the Commission. (2) FORFEITURE OF OFFICE OR EMPLOYMENT --Any officer or employee who shall willfully violate any of the provisions of this section shall forfeit his office or employment.(3) AGREEMENT VOID --Any contract or agreement knowingly made in contravention of this section is void.(4) CRIMINAL AND CIVIL SANCTIONS --Officers and employees of the Commission shall be subject, in addition to the provisions of this section, to such criminal and civil sanctions for misconduct in office as may be imposed by Federal law and the law of the signatory state in which such misconduct occurs.
Article 5
Eligibility, Entry into Effect, Congressional Consent, Withdrawal
(A) ELIGIBILITY.
Only the States of Pennsylvania, West Virginia, Delaware and Maryland are eligible to become parties to this compact.
(B) ENTRY INTO EFFECT.
An eligible state may become a party state by legislative enactment of this compact or by executive order of the governor adopting this compact; provided, however, a state becoming a party state by executive order shall cease to be a party state upon adjournment of the first general session of its legislature convened thereafter, unless the legislature shall have enacted this compact before such adjournment.
(C) CONGRESSIONAL CONSENT.
This compact shall take effect when it has been enacted by the legislatures of Pennsylvania and one or more eligible states. However, Article 4(B) and (C) shall not take effect until Congress has consented to this compact. Every fifth year after such consent has been given, Congress may withdraw consent.
(D) WITHDRAWAL.
A party state may withdraw from the compact by repealing the enactment of this compact, but no such withdrawal shall become effective until two years after enactment of the repealing legislation. If the withdrawing state is a host state, any regional facility in that state shall remain available to receive low-level waste generated within the region until five years after the effective date of the withdrawal.
Article 6
Construction and Severability
(A) CONSTRUCTION.
The provisions of this compact shall be broadly construed to carry out the purposes of the compact, but the sovereign powers of a party state shall not unnecessarily be infringed.
(B) SEVERABILITY.
If any part or application of this compact is held invalid, the remainder, or its application to other situations or persons, shall not be affected.
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