Opinion No. Oag 23-92, (1992) , 80 Op. Att'y Gen. 308 ( 1992 )

JOSEPH STROHL, Chairman Wisconsin Radioactive Waste Review Board

You ask two questions; both concern the authority of the Radioactive Waste Review Board (Board).

You first ask whether any unit of government or officer of the state, other than the Board, may represent the state in negotiating agreements with federal agencies regarding the disposal of high-level radioactive waste and transuranic waste (HLRW) or siting for a monitored retrievable storage facility. Second, you ask whether a local unit of government in Wisconsin may deal directly with federal agencies independent of the Board and discuss, negotiate, apply for or receive funds in support of negotiations regarding the siting of an HLRW repository or storage facility.

In my opinion local governments cannot negotiate HLRW agreements directly with the federal government. Local units of government may, however, apply for grants to provide funds to support information and education efforts related to potential negotiations for those sites.

The Board serves as an advocate on behalf of the citizens of Wisconsin before the federal Department of Energy and other federal agencies on matters related to the long-term disposal of HLRW. Sec. 36.50(3), Stats. Section 36.50(2)(a) of the Wisconsin statutes designates the Board as the initial agency to be contacted by the federal Department of Energy or any other federal agency on any matter related to the long-term disposal of HLRW. The Legislature has specifically designated the Board as the agency to negotiate agreements with the Department of Energy on any matter related to the long-term disposal of HLRW. Sec. 36.50(8)(a), Stats.

With regard to your first question, section 36.50(8) provides that the Board shall serve as the agency in Wisconsin to negotiate written agreements and modifications to those agreements with the federal Department of Energy and any other federal agency on any matter related to the long-term disposal of HLRW. The federal law requires the negotiator to negotiate with the governing body of any Indian tribe or the governor of any state in which a potential site is located but specifically provides that if state law authorizes any person or entity other than the governor to negotiate a proposed agreement, the negotiator must negotiate with that other entity.42 U.S.C.A. § 10243(a) (West 1992). As noted above, Wisconsin law provides that the Board shall negotiate any agreement on behalf of Wisconsin. The federal law requires therefore, that the negotiator, if he or she is to negotiate with anyone in Wisconsin, must negotiate with the Board. Neither federal nor state law authorizes negotiating agreements with any unit of government other than the Board.

42 U.S.C.A. § 10243(b) (West 1992) specifically provides:

In addition to entering into negotiations under subsection (a) of this section, the Negotiator shall consult with any State, affected unit of local government, or any Indian tribe that the Negotiator determines may be affected by the siting of a repository . . . and may include in any proposed agreement such terms and conditions relating to the interest of . . . affected units of local government . . . as the Negotiator determines to be reasonable and appropriate.

42 U.S.C.A. § 10101(31) (West Supp. 1992) defines an affected unit of local government as "the unit of local government with jurisdiction over the site of a repository or a monitored retrievable storage facility." The federal law, therefore, does not permit, much less mandate, the negotiator to reach agreements with local units of government. It merely provides that the negotiator may consult with those affected local units of government and incorporate their concerns into any state agreement to the extent the negotiator determines those concerns to be reasonable.

In sum, under Wisconsin law only the Board may negotiate agreements with the federal government. Under federal law the negotiator must negotiate any HLRW agreement involving Wisconsin with the Board. Wisconsin law does not authorize any other entity to negotiate with the federal government. The federal law does not authorize the negotiator to negotiate with any other entity.

With regard to your second question, section 36.50(5) gives the Board the authority to "review any application to the federal department of energy or other federal agency by a state agency, local unit of government or regional planning commission for funds for any program related to the long-term disposal of high-level radioactive waste or transuranic waste." Wisconsin law, therefore, specifically contemplates local units of government applying for funds for programs relating to long-term disposal of radioactive waste. The law provides that if the Board finds that the application is not consistent with the Board's policy relating to the long-term disposal of HLRW or if the Board finds that the application is not in the best interest of the state, the Board must forward its findings to the Governor, the Joint Committee on Finance and the federal agency to which the application of funds is being made. If the applicant for funds is a state agency, the Board must include a recommendation that the Governor include conditions for the acceptance of the funds which are necessary to safeguard the interests of the state.

The state law obviously contemplates local units of government applying for funds. State law gives the Board the authority to review requests; it does not give the Board the authority to veto the requests. A local unit of government may apply for grants to support information and education efforts related to potential negotiation for siting a facility or a repository. The Board must be given the opportunity to review and comment upon the application.

JED:AL