§ 13-29-1-6 — Development, operation, and closing of compact facilities

ARTICLE VI. DEVELOPMENT, OPERATION, AND
CLOSING OF COMPACT FACILITIES
a. Any party state may volunteer to become a host state, and the
Commission may designate that state as a host state.
b. If not all compact facilities required by the regional disposal plan
are developed pursuant to Article VI(a) of this compact, the
Commission may designate a host state.
c. After a state is designated a host state by the Commission, it is
responsible for the timely development and operation of the compact
facility it is designated to host. The development and operation of the
compact facility shall not conflict with applicable federal and host state
laws, rules, and regulations, provided that the laws, rules, and
regulations of a host state and its political subdivisions shall not
prevent, nor shall they be applied so as to prevent, the host state's
discharge of the obligation set forth in Article VI(c) of this compact.
The obligation set forth in Article VI(c) of this compact is contingent
upon the discharge by the Commission of its obligation set forth in
Article III(i)(5) of this compact.
d. If a party state designated as a host state fails to discharge the
obligations imposed upon it by Article VI(c) of this compact, its host
state designation may be terminated by a two-thirds vote of the
Commission with the member from the host state of any then operating
compact facility voting in the affirmative. A party state whose host
state designation has been terminated has failed to fulfill its obligations
as a host state and is subject to the provisions of Article VIII(d) of this
compact.
e. Any party state designated as a host state may request the
Commission to relieve that state of the responsibility to serve as a host
state. Except as set forth in Article VI(d) of this compact, the
Commission may relieve a party state of its responsibility only upon a
showing by the requesting party state that, based upon criteria
established by the Commission that are consistent with any applicable
federal criteria, no feasible potential compact facility site exists within
its borders.
A party state relieved of its host state responsibility shall repay to
the Commission any funds provided to that state by the Commission for
the development of a compact facility, and also shall pay to the
Commission the amount the Commission determines is necessary to
ensure that the Commission and the other party states do not incur
financial loss as a result of the state being relieved of its host state
responsibility. Any funds so paid to the Commission with respect to the
financial loss of the other party states shall be distributed forthwith by
the Commission to the party states that would otherwise incur the loss.
In addition, until the state relieved of its responsibility is again
designated as a host state and a compact facility located in that state
begins operating, it shall annually pay to the Commission, for deposit
in the remedial action fund, an amount the Commission determines is
fair and equitable in light of the fact the state has been relieved of the
responsibility to host a compact facility, but continues to enjoy the
benefits of being a member of this compact.
f. The host state shall select the technology for the compact facility.
If requested by the Commission, information regarding the technology
selected by the host state shall be submitted to the Commission for its
review. The Commission may require the host state to make changes
in the technology selected by the host state if the Commission
demonstrates that the changes do not decrease the protection of air,
land, and water resources and the health and safety of all people who
may be affected by the facility. If requested by the host state, any
Commission decision requiring the host state to make changes in the
technology shall be preceded by an adjudicatory hearing in which the
Commission shall have the burden of proof.
g. A host state may assign to a private contractor the responsibility,
in whole or in part, to develop, construct, operate, close, or provide
long-term care for a compact facility. Assignment of such
responsibility by a host state to a private contractor does not relieve the
host state of any responsibility imposed upon it by this compact. A host
state may secure indemnification from the contractor for any costs,
liabilities, and expenses incurred by the host state resulting from the
development, construction, operation, closing, or long-term care of a
compact facility.
h. To the extent permitted by federal and state law, a host state shall
regulate and license any facility within its borders and ensure the
long-term care of that facility.
i. A host state shall accept waste for disposal for a period of twenty
years from the date the compact facility in the host state becomes
operational, or until its capacity has been reached, whichever occurs
first. At any time before the compact facility closes, the host state and
the Commission may enter into an agreement to extend the period
during which the host state is required to accept such waste or to
increase the capacity of the compact facility. Except as specifically
authorized by Article VI(l)(4) of this compact, the twenty year period
shall not be extended, and the capacity of the facility shall not be
increased, without the consent of the affected host state and the
Commission.
j. A host state shall establish a system of fees to be collected from
the users of any compact facility within its borders. The fee system, and
the costs paid through the system, shall be reasonable and equitable.
The fee system shall be subject to the Commission's approval. The fee
system shall provide the host state with sufficient revenue to pay costs
associated with the compact facility including, but not limited to,
operation, closing, long-term care, debt service, legal costs, local
impact assistance, and local financial incentives. The fee system also
shall be used to collect the surcharge provided in Article III(j)(2) of this
compact. The fee system shall include incentives for source reduction
and shall be based on the hazard of the waste as well as the volume.
k. A host state shall ensure that a compact facility located within its
borders that is permanently closed is properly cared for so as to ensure
protection of air, land, and water resources and the health and safety of
all people who may be affected by the facility.
l. The development of subsequent compact facilities shall be as
follows:
1. No compact facility shall begin operating until the Commission
designates the host state of the next compact facility.
2. The following actions shall be taken by the state designated to
host the next compact facility within the specified number of
years after the compact facility it is intended to replace begins
operation:
a. Within three years, enact legislation providing for the
development of the next compact facility.
b. Within seven years, initiate site characterization
investigations and tests to determine licensing suitability for the
next compact facility.
c. Within eleven years, submit a license application for the next
compact facility that the responsible licensing authority deems
complete.
If a host state fails to take any of these actions within the specified
time, all waste generated by any person within that state shall be
denied access to the then operating compact facility, and to any
noncompact facility made available to the region by any
agreement entered into by the Commission pursuant to Article
III(h)(6) of this compact, until the action is taken. Denial of
access may be rescinded by the Commission, with the member
from the host state of the then operating compact facility voting
in the affirmative. A host state that fails to take any of these
actions within the specified time has failed to fulfill its obligations
as a host state and is subject to the provisions of Articles VI(d)
and VIII(d) of this compact.
3. Within fourteen years after any compact facility begins
operating, the state designated to host the next compact facility
shall have obtained a license from the responsible licensing
authority to construct and operate the compact facility the state
has been designated to host. If the license is not obtained within
the specified time, all waste generated by any person within the
state designated to host the next compact facility shall be denied
access to the then operating compact facility, and to any
noncompact facility made available to the region by any
agreement entered into by the Commission pursuant to Article
III(h)(6) of this compact, until the license is obtained. The state
designated to host the next compact facility shall have failed in its
obligations as a host state and shall be subject to Articles VI(d)
and VIII(d) of this compact. In addition, at the sole option of the
host state of the then operating compact facility, all waste
generated by any person within any party state that has not fully
discharged its obligations under Article VI(i) of this compact
shall be denied access to the then operating compact facility, and
to any noncompact facility made available to the region by any
agreement entered into by the Commission pursuant to Article
III(h)(6) of this compact, until the license is obtained. Denial of
access may be rescinded by the Commission, with the member
from the host state of the then operating compact facility voting
in the affirmative.
4. If twenty years after a compact facility begins operating, the
next compact facility is not ready to begin operating, the state
designated to host the next compact facility shall have failed in its
obligation as a host state and shall be subject to Articles VI(d) and
VIII(d) of this compact. If at the time the capacity of the then
operating compact facility has been reached, or twenty years after
the facility began operating, whichever occurs first, the next
compact facility is not ready to begin operating, the host state of
the then operating compact facility, without the consent of any
other party state or the Commission, may continue to operate the
facility until a compact facility in the next host state is ready to
begin operating. During any such period of continued operation
of a compact facility, all waste generated by any person within the
state designated to host the next compact facility shall be denied
access to the then operating compact facility and to any
noncompact facility made available to the region by any
agreement entered into by the Commission pursuant to Article
III(h)(6) of this compact. In addition, during such period, at the
sole option of the host state of the then operating compact facility,
all waste generated by any person within any party state that has
not fully discharged its obligations under Article VI(i) of this
compact shall be denied access to the then operating compact
facility and to any noncompact facility made available to the
region by any agreement entered into by the Commission pursuant
to Article III(h)(6) of this compact. Denial of access may be
rescinded by the commission, with the member from the host state
of the then operating compact facility voting in the affirmative.
The provisions of Article VI(l)(4) of this compact shall not apply
if their application is inconsistent with an agreement between the
host state of the then operating compact facility and the
Commission as authorized in Article VI(i) of this compact, or
inconsistent with Article VI(p) or (q) of this compact.
5. During any period that access is denied for waste disposal
pursuant to Article VI(l)(2), (3), or (4) of this compact, the party
state designated to host the next compact disposal facility shall
pay to the host state of the then operating compact facility an
amount the Commission determines is reasonably necessary to
ensure that the host state, or any agency or political subdivision
thereof, does not incur financial loss as a result of the denial of
access.
6. The Commission may modify any of the requirements
contained in Articles VI(l)(2) and (3) of this compact if it finds
that circumstances have changed so that the requirements are
unworkable or unnecessarily rigid or no longer serve to ensure the
timely development of a compact facility. The Commission may
adopt such a finding by a two-thirds vote, with the member from
the host state of the then operating compact facility voting in the
affirmative.
m. This compact shall not prevent an emergency closing of a
compact facility by a host state to protect air, land and water resources
and the health and safety of all people who may be affected by the
facility. A host state that has an emergency closing of a compact
facility shall notify the Commission in writing within three working
days of its action and shall, within thirty (30) working days of its
action, demonstrate justification for the closing.
n. A party state that has fully discharged its obligations under
Article VI(i) of this compact shall not again be designated a host state
of a compact facility without its consent until each party state has been
designated to host a compact facility and has fully discharged its
obligations under Article VI(i) of this compact or has been relieved
under Article VI(e) of this compact of its responsibility to serve as a
host state.
o. Each host state of a compact facility shall establish a long-term
care fund to pay for monitoring, security, maintenance, and repair of
the facility after it is permanently closed. The expenses of
administering the long-term care fund shall be paid out of the fund. The
fee system established by the host state that establishes a long-term
care fund shall be used to collect moneys in amounts that are adequate
to pay for all long-term care of the compact facility. The moneys shall
be deposited into the long-term care fund. Except where the matter is
resolved through arbitration, the amount to be collected through the fee
system for deposit into the fund shall be determined through an
agreement between the Commission and the host state establishing the
fund. Not less than three years, nor more than five years, before the
compact facility it is designated to host is scheduled to begin operating,
the host state shall propose to the Commission the amount to be
collected through the fee system for deposit into the fund. If, one
hundred eighty days after such proposal is made to the Commission,
the host state and the Commission have not agreed, either the
Commission or the host state may require the matter to be decided
through binding arbitration. The method of administration of the fund
shall be determined by the host state establishing the long-term care
fund, provided that moneys in the fund shall be used only for the
purposes set forth in Article VI(o) of this compact and shall be invested
in accordance with the standards applicable to trustees under the laws
of the host state establishing the fund. If, after a compact facility is
closed, the Commission determines the long-term care fund established
with respect to that facility is not adequate to pay for all long-term care
for that facility, the Commission shall collect and pay over to the host
state of the closed facility, for deposit into the long-term care fund, an
amount determined by the Commission to be necessary to make the
amount in the fund adequate to pay for all long-term care of the facility.
If a long-term care fund is exhausted and long-term care expenses for
the facility with respect to which the fund was created have been
reasonably incurred by the host state of the facility, those expenses are
a liability with respect to which generators shall provide
indemnification as provided in Article VII(g) of this compact.
Generators that provide indemnification shall have contribution rights
as provided in Article VII(g) of this compact.
p. A host state that withdraws from the compact or has its
membership revoked shall immediately and permanently close any
compact facility located within its borders, except that the Commission
and a host state may enter into an agreement under which the host state
may continue to operate, as a noncompact facility, a facility within its
borders that, before the host state withdrew or had its membership
revoked, was a compact facility.
q. If this compact is dissolved, the host state of any then operating
compact facility shall immediately and permanently close the facility,
provided that a host state may continue to operate a compact facility or
resume operating a previously closed compact facility, as a noncompact
facility, subject to all of the following requirements:
1. The host state shall pay to the other party states the portion of
the funds provided to that state by the Commission for the
development, construction, operation, closing, or long-term care
of a compact facility that is fair and equitable, taking into
consideration the period of time the compact facility located in
that state was in operation and the amount of waste disposed of at
the facility, provided that a host state that has fully discharged its
obligations under Article VI(i) of this compact shall not be
required to make such payment.
2. The host state shall physically segregate waste disposed of at
the facility after this compact is dissolved from waste disposed of
at the facility before this compact is dissolved.
3. The host state shall indemnify and hold harmless the other
party states from all costs, liabilities, and expenses, including
reasonable attorneys' fees and expenses, caused by operating the
facility after this compact is dissolved, provided that this
indemnification and hold harmless obligation shall not apply to
costs, liabilities, and expenses resulting from the activities of a
host state as a generator of waste.
4. Moneys in the long-term care fund established by the host state
that are attributable to the operation of the facility before this
compact is dissolved, and investment earnings thereon, shall be
used only to pay the cost of monitoring, securing, maintaining, or
repairing that portion of the facility used for the disposal of waste
before this compact is dissolved. Such moneys and investment
earnings, and any moneys added to the long-term care fund
through a distribution authorized by Article III(r) of this compact,
also may be used to pay the cost of any remedial action made
necessary by an event resulting from the disposal of waste at the
facility before this compact is dissolved.
r. Financial statements of a compact facility shall be prepared
according to generally accepted accounting principles. The
Commission may require the financial statements to be audited on an
annual basis by a firm of certified public accountants selected and paid
by the Commission.
s. Waste may be accepted for disposal at a compact facility only if
the generator of the waste has signed, and there is on file with the
Commission, an agreement to provide indemnification to a party state,
or employee of that state, for all of the following:
1. Any cost of a remedial action described in Article III(p) of this
compact that, due to inadequacy of the remedial action fund, is
not paid as set forth in that provision.
2. Any expense for long-term care described in Article VI(o) of
this compact that, due to exhaustion of the long-term care fund,
is not paid as set forth in that provision.
3. Any liability for damages to persons, property, or the
environment incurred by a party state, or employee of that state
while acting within the scope of employment, resulting from the
development, construction, operation, regulation, closing, or
long-term care of a compact facility, or any noncompact facility
made available to the region by any agreement entered into by the
Commission pursuant to Article III(h)(6) of this compact, or any
other matter arising from this compact. The agreement also shall
require generators to indemnify the party state or employee
against all reasonable attorney's fees and expenses incurred in
defending any action for such damages. This indemnification
shall not extend to liability based on any of the following:
a. The activities of the party states as generators of waste.
b. The obligations of the party states to each other and the
Commission imposed by this compact or other contracts related
to the disposal of waste under this compact.
c. Activities of a host state or employees thereof that are grossly
negligent or willful and wanton.
The agreement shall provide that the indemnification obligation
of generators shall be joint and several, except that the
indemnification obligation of the party states with respect to their
activities as generators of waste shall not be joint and several, but
instead shall be prorated according to the amount of waste that
each state had disposed of at the compact facility giving rise to
the liability. Such proration shall be calculated as of the date of
the event giving rise to the liability. The agreement shall be in a
form approved by the Commission with the member from the host
state of any then operating compact facility voting in the
affirmative. Among generators there shall be rights of
contribution based on equitable principles, and generators shall
have rights of contribution against any other person responsible
for such damages under common law, statute, rule, or regulation,
provided that a party state that through its own activities did not
generate any waste disposed of at the compact facility giving rise
to the liability, an employee of such a party state, and the
Commission shall have no such contribution obligation. The
Commission may waive the requirement that the party state sign
and file such an indemnification agreement as a condition to
being able to dispose of waste generated as a result of the party
state's activities. Such a waiver shall not relieve a party state of
the indemnification obligation imposed by Article VII(g) of this
compact.
[Pre-1996 Recodification Citation: 13-5-9-6.]

Legislative History

As added by P.L.1-1996, SEC.19. Amended by P.L.131-1996, SEC.7.