TITLE 23
Health and Safety

CHAPTER 23-19.9
Low-Level Radioactive Waste Compact

SECTION 23-19.9-5


§ 23-19.9-5 The commission.

(a) There is created the Rhode Island – Massachusetts Interstate Low-Level Radioactive Waste Management Commission. The Commission shall consist of members from each party state to be appointed according to the procedures of each party state, except that a host state shall have more members during the period that it has an operating regional facility. The Governor of each party state shall notify the Commission, in writing, of the identities of the member or members from that state, and of one alternate for each member, who may act on behalf of the member only in the member's absence.

(b) Each Commission member shall be entitled to one vote; except that, when a host state that has a closed regional facility is represented by only one member, that member shall be entitled to two (2) votes, when the Commission is taking action affecting that facility. Except as otherwise provided in this compact, Commission action shall require a majority of the eligible votes of Commission members. A roll call vote shall be required upon request of any member.

(c) The Commission shall annually elect, from among its members, a presiding officer and any other officers that it deems appropriate. The Commission may also establish any committees that it deems necessary to carry out its duties and functions.

(d) The Commission shall meet at least once a year and shall also meet upon the call of any member. Except as provided in this section, all meetings of the Commission and its committees shall be open to the public. No majority of the members of the Commission, or its committees shall meet in private for the purpose of acting on, or deliberating toward action on, any matter, except as provided in this section. No meeting of the Commission or its committees shall be closed to the public for the purpose of holding an executive session until the Commission or committee has first convened in an open session for which public notice has been given, a majority of the members have voted to go into executive session, a vote of each member has been recorded on a roll call vote and entered into the minutes, and the presiding officer has announced the purpose of the executive session and has stated whether the Commission or committee will reconvene in public after the executive session. An executive session may be held only for the consideration of:

(1) Sensitive personnel matters;

(2) Sensitive litigation matters, the public disclosure of which would adversely affect the Commission's position relative to sensitive litigation; or

(3) Other legal matters where preservation of the attorney-client privilege is essential.

Failure to comply with the provisions of this section shall invalidate any actions, hearings or proceedings of the Commission or its committees during that meeting.

(e) For each meeting of the Commission or its committees, other than a meeting called in response to a public health, safety or environmental emergency, the Commission shall make a public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting; whether it is anticipated that any agenda item will require discussion in executive session; and the name and phone number of the official designated by the Commission to respond to requests for information about the meeting.

(f) The Commission and its committees shall maintain accurate records of their meetings, recording the date, time, place, members present or absent, and action taken at each meeting. These records shall become public documents; provided, that the record of any executive session may remain secret as long as its publication may defeat the lawful purposes of the executive session, but no longer. Commission and committee meetings, except those held in executive session, may be recorded by any person in attendance by means of a tape recorder or other sonic reproduction device, which does not interfere with the conduct of the meeting.

(g) The Commission may appoint, contract for, compensate, or otherwise provide for a limited staff that it determines necessary to carry out its duties and functions. The staff shall serve at the Commission's pleasure irrespective of the civil service, personnel or other merit laws of any of the party states or the federal government and shall be compensated from funds of the Commission.

(h) At its annual meeting, the Commission shall adopt an annual line item budget for its operations. The Commission's budget shall be a public document.

(i) The Commission established by this section is a body corporate and public, separate and distinct from party states and shall be liable for its own actions on the same basis as the United States may be liable under the Federal Tort Claims Act (28 U.S.C. § 2674). Liabilities of the Commission shall not be deemed liabilities of the party states. Nor shall members of the Commission be personally liable for action taken by them in their official capacity.

(j) The Commission shall have the following duties and powers:

(1) The Commission shall receive, and act upon, in an adjudicatory proceeding, the application of a non-party state to become an eligible state pursuant to § 23-19.9-8(e).

(2) The Commission shall submit an annual report to, and otherwise communicate with, the governor and the presiding officer of each house of the legislature of each party state regarding the activities of the Commission.

(3) Upon request of any party state, the Commission shall mediate disputes that arise among the party states regarding the compact.

(4) The Commission shall, after consultation with host states, adopt by rule, maintain and implement a regional low-level waste management plan, in accordance with § 23-19.9-6(a). No regional facility shall be developed prior to the completion of a regional low-level waste management plan.

(5) The commission shall establish by rule procedures that are necessary to ensure efficient operation and performance of its duties and functions, the orderly gathering and dissemination of information and the protection of the rights of due process of affected persons.

(6) In accordance with the procedures and criteria set forth in § 23-19.9-6, the Commission shall act on a party state's application to assume responsibility to host a regional facility within its borders.

(7) In accordance with the procedures and criteria stated in § 23-19.9-6, the Commission may select, by a two-thirds ( 2/3) majority of the eligible votes of Commission members, host states for the establishment of needed regional facilities.

(8) After December 31, 1986, no person shall deliver low-level waste generated outside the region to a regional facility for management, and no regional facility shall accept low-level waste generated outside the regions, unless the delivery and acceptance are approved by a two-thirds ( 2/3) majority of the eligible votes of Commission members and by the Commission members representing the host state in which the regional facility is located. This approval shall be granted only after the host state and the Commission have made an assessment of the affected facility's capabilities to accept low-level wastes and of relevant environmental, economic, and public health factors.

(9) Unless otherwise provided by the Commission, all low-level waste generated within the regions shall be treated, stored for decay, or delivered to a regional facility or other facility licensed to accept low-level waste as of the effective date of this compact. No low-level waste generated within the region shall be exported to any facility outside the region unless the export is approved by a two-thirds ( 2/3) majority of the eligible votes of Commission members and by the Commission members representing each host state in which a regional facility is available to accept low-level waste.

(10) The Commission may appear as an intervenor or party in interest before any court of law, federal, state or local agency, board or commission that has jurisdiction over the management of low-level waste. The authority to intervene or otherwise appear shall be exercised only upon the vote of a two-thirds ( 2/3) majority of the eligible votes of Commission members. In order to present its views, the Commission may arrange for legal representation, expert testimony, reports, evidence, or other participation, as it deems necessary.

(11) The Commission may impose sanctions, including but not limited to, fines, suspension of privileges or revocation of party state status, in accordance with the procedures established in § 23-19.9-8(g).

(12) The Commission shall review and comment on fees and surcharges proposed by a site operator or host state, and on any Facility Closure Plan prepared pursuant to § 23-19.9-4(g). The Commission shall hold a public hearing prior to issuing its comments pursuant to this paragraph.

(13) The Commission shall review the compact legislation every five (5) years, prior to federal congressional review provided for in the Policy Act, and may recommend legislative action.

(14) The Commission shall establish a Commission operating account. The Commission shall keep accurate accounts of all receipts and disbursements. An independent certified public accountant shall annually audit all receipts and disbursements of the Commission operating account and funds, and submit an audit report to the Commission. The audit reports shall be made a part of the annual report of the Commission.

(15) The Commission may accept, receive, utilize and dispose, for any of its purposes and functions, any and all donations, loans, grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state or the United States or agency or political subdivision of any state or the United States, or interstate agency, or from any other person. The nature, amount and condition, if any, attendant upon any donation, loan, or grant accepted pursuant to this paragraph, together with the identity of the donor, grantor, or lender, shall be detailed in the annual report of the Commission. The Commission shall by rule establish guidelines for the acceptance of donations, loans, grants of money, equipment, supplies, materials, and services. No donor, grantor, or lender shall derive any advantage in any proceeding before the Commission.

(k) The Commission shall conduct adjudicatory proceedings as the process for formulating an order, unless the order is a decision to:

(1) Issue or not to issue a complaint, summons, or similar accusation; or

(2) Initiate or not to initiate an investigation, prosecution, or other proceeding before the Commission, another commission or agency, or a court.

(l) The Commission shall conduct adjudicatory proceedings in accordance with this section. All parties to an adjudicatory proceeding shall be granted the opportunity for a Commission hearing after reasonable notice.

(1) The notice shall include:

(i) A statement of the time, place, and nature of the proceeding;

(ii) A statement of the legal authority and jurisdiction under which the proceeding is to be held;

(iii) A reference to the particular sections of statutes, rules and provisions of this compact involved;

(iv) A short and plain statement of the matters at issue.

(2) Reasonable opportunity shall be granted all parties to the adjudicatory proceeding to present, and respond to, evidence and arguments on all factual and legal questions presented in the proceeding.

(3) Oral proceedings or any part of oral proceedings shall be transcribed on request of any party.

(4) No ex parte communications, or communications for the benefit of one side only, relevant to the merits of the adjudicatory proceeding shall be made or knowingly caused to be made to any member of the Commission, hearing officer, or other employee who is or may reasonably be expected to be involved in the decision process of the proceeding.

(5) Findings of fact shall be based exclusively on the record, which shall include:

(i) All pleadings, motions, and intermediate rulings;

(ii) All evidence received or considered;

(iii) A statement of matters officially noticed;

(iv) Questions and offers of proof, objections, and rulings thereon;

(v) Proposed findings and exceptions;

(vi) Any decision, opinion, or report by the officer presiding at the hearing;

(vii) All staff memoranda or data submitted to the members of the Commission in connection with their consideration of the case.

(6) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

(m) Any party state or agency or political subdivision of any party state or agency, or not less than twenty-five (25) other persons residing within the region may petition the commission requesting the promulgation, amendment, suspension, or repeal of a rule. The Commission shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within thirty (30) days after submission of a petition, the Commission shall, in writing, affirm or deny the petition, stating the reasons for its action, and may initiate rulemaking proceedings in accordance with this section.

(1) Except as provided in subdivision (2) of this section, the Commission shall, prior to the adoption, amendment or repeal of any rule:

(i) Give at least thirty (30) days' notice of its intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time, place, and manner in which interested persons may present their views thereon. The notice shall be mailed to all persons who have made a timely request of the Commission for advance notice of its rulemaking proceedings and shall be published in the Secretary of State's Office for each party state, and in at least the two (2) newspapers with the largest circulation in each party state.

(ii) Grant all interested persons reasonable opportunity to submit data, views or arguments, orally or in writing. In case of substantive rules, opportunity of oral hearing must be granted if requested by any party state or agency or political subdivision of any party state or agency, or by not less than twenty-five (25) other persons residing within the region. The Commission shall fully consider all written and oral submissions respecting the proposed rule. Upon request made by an interested person within thirty (30) days after adoption of a rule, the Commission shall issue a concise statement of the principal arguments for and against its adoption, incorporating in that statement its reasons for overruling the arguments urged against its adoption.

(2) If the Commission finds that an imminent peril to the public health, safety and welfare requires adoption of a rule upon fewer than thirty (30) days notice, and states, in writing, its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule may be effective for a period of not longer than one hundred twenty (120) days, but the adoption of an identical rule under this section is not precluded.

(n) A person suffering legal wrong because of Commission action, or adversely affected or aggrieved by Commission action, may seek judicial review of that action.

(1) When the Commission finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On conditions that may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application of certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of a Commission action or to preserve status or rights pending conclusion of the review proceedings.

(2) A petition for judicial review under this subsection may be heard in a court of competent jurisdiction.

(3) The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of a Commission action when presented to the court and to the extent necessary for a decision. The reviewing court shall:

(i) Compel the Commission action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside Commission action, findings, and conclusions found, in accordance with the standards of the federal Administrative Procedure Act, 5 U.S.C. § 706(2), to be:

(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege, or immunity;

(C) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) Without observance of procedure required by law;

(E) Unsupported by substantial evidence in a case of review of an adjudicatory decision;

(F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the previous determinations, the court shall review the whole record to those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. The court shall not substitute its judgment for that of the Commission as to decisions of policy or weight of the evidence or questions of fact.

History of Section.
(P.L. 1986, ch. 300, § 1.)