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§23-19.9-5  The Commission. –

Published: 2015

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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


   (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


   (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


   (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


   (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


   (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


   (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


   (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


   (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


   (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.)