Science Radioactive waste compact: to join or not to join? By KEITH E. JACKSON

DURING the next year Illinois must choose among three options for disposal of low-level radioactive waste. The state could join the Midwest Interstate Compact on Low-Level Radioactive Waste as it is now written, amend the compact to incorporate current Illinois concerns and submit this revision to the other midwestern states for concurrence or "go it alone" and develop its own low-level radioactive waste disposal facility.

Illinois and other states are faced with these choices under the Low-Level Radioactive Waste Policy Act (42 U.S.C.A. 2021) enacted in 1980 which suggests that states take the interstate compact approach to low-level radioactive waste disposal. The opinion of Congress was that these wastes "can be most safely and efficiently managed on a regional basis." The nation currently has six compacts in the formative stage.

The law gives states the option of either joining a compact in which one member state would host a regional disposal facility or not joining a compact and providing its own. Beginning January 1, 1986, any regional disposal facility operating under a compact can be restricted to use by member states only. No compact becomes effective without approval by Congress which has the right to review a compact every five years and withdraw its consent.

Four states — Indiana, Iowa, Michigan and Minnesota — have approved the Midwest Compact. Illinois is among 12 other states eligible to join it; however, four of these states — Kansas, Nebraska, Virginia and Maryland — have joined or are considering joining other compacts. Although it passed the Illinois House May 27, the compact never got out of the Senate Agriculture, Conservation and Energy Committee. By June 30, it had passed one house in Ohio and was also under study in South Dakota and Wisconsin. It had not been introduced in Delaware or Kentucky, but Kentucky has a special committee studying it and other options; and the compact had failed in the Missouri and North Dakota legislatures. The Midwest Compact includes a deadline provision: Any state not approving the compact by July 1, 1984, loses its eligibility to become a member.

In 1981, midwestern governors met to begin negotiations on the compact. The final version was completed on September 1, 1982, by negotiators appointed by the governor of each state.

Currently, there is concern among Illinois government officials and the public about approving the compact in its present form. This concern centers around the assumption that Illinois will be selected to host the Midwest Compact's low-level radioactive waste disposal facility. Illinois, which ranks among the top 10 states in the country in generation of low-level radioactive waste, is believed to be a prime candidate for host state since it generates more of these wastes than any other state eligible to join the Midwest Compact (Illinois generates 40 percent of the low-level waste produced by all 16 eligible states). Also, individuals that have been following the Midwest Compact issue believe that the four states that have approved the compact did so under the assumption that Illinois would be the host state for the regional facility.

The Midwest Compact contains three major provisions that could cause problems for Illinois should the state join and be selected to host the regional facility.

The first concerns the host state's authority in managing low-level waste. The compact creates an interstate commission, composed of one representative from each member state, which is required to adopt a regional management plan to safely and efficiently manage low-level radioactive waste generated in the region. After the commission adopts a plan, it is to designate the host state for the regional disposal facility. The main concern about this provision is the lack of any host state's authority in approving the plan beyond its one vote on the commission.

The second potential problem is the fee system, which the compact authorizes the host state to establish in order to cover the costs of planning, operating and decommissioning the regional facility and the costs of long-term care and liability associated with the facility. The fee system can also generate "reasonable revenue" beyond the costs incurred by the host state. The problem with this provision is in its wording: that the fee system "shall be reasonable and equitable" and is "subject to approval by the commission." But, what will be considered a "reasonable and equitable" fee system by the commission? And how much revenue will be needed to cover the predicted costs of the facility and any unforeseen costs that may occur from any unexpected problems that may develop with the facility?

The third problematic provision makes the host state solely liable for the facility during its operation and after its closing. As the potential host state, Illinois might prefer some arrangement that shares the liability with the other member states.

Illinois could amend the existing compact to incorporate these concerns and submit the amended version to the other eligible states for concurrence. (All of the states eligible to join a compact have to approve an identical compact before it can be sent to Congress for approval.)

Should Illinois decide to "go it alone" and develop its own facility like California and Texas have decided to do, the state could run into a major legal problem if it intended to exclude other states' low-level wastes. Such exclusion might violate the commerce clause of the U.S. Constitution.

A final concern about the Midwest Compact, as well as other compacts, is whether the disposal facilities can be operational by the January 1, 1986, deadline when the facilities can restrict disposal to member states only. In compacts where none of the member states has a disposal facility already operating, many experts believe that it is doubtful a facility could be constructed and operational by the deadline. But states cannot assume that Congress will relax the deadline, according to Elsie Holstein of the National Conference of State Legislatures (NCSL). At a conference cosponsored by the Midwestern Office of the Council of State Governments and NCSL in Springfield on April 26, Holstein said "that it is unlikely at this time that Congress will relax the January 1, 1986, exclusion date."

Keith E. Jackson is staff scientist in the Illinois Legislative Council's Chicago Science Office. He has been following the low-level waste compact issue since 1981 and this column is based on information gathered from meetings and individuals following the issue.

August 1983 | Illinois Issues | 25