TITLE 23
Health and Safety

CHAPTER 23-19.7
Hazardous Waste Management Facilities

SECTION 23-19.7-10


§ 23-19.7-10 Siting and impact agreements – Arbitration – Appeals.

(a) If on or after ninety (90) days following the establishment of a local assessment committee or issuance of state permits required under the Hazardous Waste Management Act, chapter 19.1 of this title, whichever is later, the developer or the chief elected official of the host or neighboring community finds that an impasse exists in the negotiation or ratification of a siting or impact agreement, either party to the impasse may invoke the binding arbitration provisions of this section; provided, that the developer or the host community may defer arbitration until the completion of negotiations or arbitration between the developer and a neighboring community. The arbitration shall be limited to only those issues remaining in dispute between the host or neighboring community and the developer, and shall not affect conditions or limitations attached to state permits issued under the Hazardous Waste Management Act, chapter 19.1 of this title.

(b)(1) Within thirty (30) days after binding arbitration is invoked by either party to a negotiating impasse, an arbitration panel shall be established. This panel shall be comprised of three (3) arbitrators, one selected by the developer, one selected by the local assessment committee, and a third, who shall act as chairperson selected jointly by the developer and the community.

(2) If there is no agreement on a third arbitrator within thirty (30) days after the two (2) parties have appointed their respective arbitrators, or if they choose by mutual agreement, either party may file a demand for arbitration and appointment of the third arbitrator by the American arbitration association.

(3) The arbitration panel shall, within forty-five (45) days after establishment, resolve the issues in dispute between the community and the developer. By mutual agreement, the parties to the negotiating impasse may extend the time permitted for the conduct of arbitration.

(4) In the event that the parties mutually resolve each of the issues in dispute and agree to be bound, they may at any time prior to the final decision of the arbitration panel request that the arbitration proceedings be terminated or that the settlement be incorporated into the arbitration award. The panel acting through its chairperson shall then terminate the proceedings.

(5) No siting or impact agreement submitted to arbitration shall be awarded unless and until the arbitrator(s) find by a preponderance of evidence that:

(i) The developer has the financial capacity to undertake the project, including the ability to properly build and operate the proposed facility and obtain performance bonds or liability insurance, as may be required;

(ii) No burden will be imposed upon the municipality with respect to the provision of additional public services, including equipment, facilities, personnel or skills, except to the extent that these are compensated for by the developer;

(iii) The design of the facility complies with applicable community standards for the site for which the facility is proposed;

(iv) The facility poses no significantly greater danger to the public health or safety due to fire, explosion, pollution, discharge of hazardous substances, or other construction or operational factors than is presented by the operation of other state-of-the-art industrial and commercial enterprises utilizing similar processes, but not engaged in the treatment, processing, or disposal of hazardous waste.

(6) The siting or impact agreement shall consist of all terms and conditions agreed to by the developer and the host or neighboring community and any additional terms or conditions imposed by the arbitrators on the basis of the findings described in this section.

(7) The arbitrators shall award reasonable costs to the host community incurred for assessments, negotiations, and arbitration conducted pursuant to this chapter.

(8) The arbitrator's award and any terms or conditions attached to the award shall be final and binding on all parties to it.

(c)(1) Either party to an arbitrator's decision may within thirty (30) days appeal the decision to the superior court.

(2) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the arbitrator, not shown in the record, proof on it may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.

(3) The court shall not substitute its judgment for that of the arbitrator as to the weight of the evidence on questions of fact. The court may affirm the decision of the arbitrator or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(i) In violation of constitutional or statutory provisions;

(ii) In excess of the statutory authority of the arbitrator;

(iii) Made upon unlawful procedure;

(iv) Affected by other error of law;

(v) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(vi) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

History of Section.
(P.L. 1982, ch. 197, § 1.)