§ 23-19.9-5 The commission. – (a) There is created the Rhode Island – Massachusetts Interstate Low-LevelRadioactive Waste Management Commission. The Commission shall consist ofmembers from each party state to be appointed according to the procedures ofeach party state, except that a host state shall have more members during theperiod that it has an operating regional facility. The Governor of each partystate shall notify the Commission, in writing, of the identities of the memberor members from that state, and of one alternate for each member, who may acton 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 isrepresented by only one member, that member shall be entitled to two (2) votes,when the Commission is taking action affecting that facility. Except asotherwise provided in this compact, Commission action shall require a majorityof the eligible votes of Commission members. A roll call vote shall be requiredupon request of any member.
(c) The Commission shall annually elect, from among itsmembers, a presiding officer and any other officers that it deems appropriate.The Commission may also establish any committees that it deems necessary tocarry out its duties and functions.
(d) The Commission shall meet at least once a year and shallalso meet upon the call of any member. Except as provided in this section, allmeetings of the Commission and its committees shall be open to the public. Nomajority of the members of the Commission, or its committees shall meet inprivate for the purpose of acting on, or deliberating toward action on, anymatter, except as provided in this section. No meeting of the Commission or itscommittees shall be closed to the public for the purpose of holding anexecutive session until the Commission or committee has first convened in anopen session for which public notice has been given, a majority of the membershave voted to go into executive session, a vote of each member has beenrecorded on a roll call vote and entered into the minutes, and the presidingofficer has announced the purpose of the executive session and has statedwhether the Commission or committee will reconvene in public after theexecutive session. An executive session may be held only for the considerationof:
(1) Sensitive personnel matters;
(2) Sensitive litigation matters, the public disclosure ofwhich would adversely affect the Commission's position relative to sensitivelitigation; or
(3) Other legal matters where preservation of theattorney-client privilege is essential.
Failure to comply with the provisions of this section shallinvalidate any actions, hearings or proceedings of the Commission or itscommittees 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 orenvironmental emergency, the Commission shall make a public announcement, atleast one week before the meeting, of the time, place, and subject matter ofthe meeting; whether it is anticipated that any agenda item will requirediscussion in executive session; and the name and phone number of the officialdesignated by the Commission to respond to requests for information about themeeting.
(f) The Commission and its committees shall maintain accuraterecords of their meetings, recording the date, time, place, members present orabsent, and action taken at each meeting. These records shall become publicdocuments; provided, that the record of any executive session may remain secretas long as its publication may defeat the lawful purposes of the executivesession, but no longer. Commission and committee meetings, except those held inexecutive session, may be recorded by any person in attendance by means of atape recorder or other sonic reproduction device, which does not interfere withthe conduct of the meeting.
(g) The Commission may appoint, contract for, compensate, orotherwise provide for a limited staff that it determines necessary to carry outits duties and functions. The staff shall serve at the Commission's pleasureirrespective of the civil service, personnel or other merit laws of any of theparty states or the federal government and shall be compensated from funds ofthe Commission.
(h) At its annual meeting, the Commission shall adopt anannual line item budget for its operations. The Commission's budget shall be apublic document.
(i) The Commission established by this section is a bodycorporate and public, separate and distinct from party states and shall beliable for its own actions on the same basis as the United States may be liableunder the Federal Tort Claims Act (28 U.S.C. § 2674). Liabilities of theCommission shall not be deemed liabilities of the party states. Nor shallmembers of the Commission be personally liable for action taken by them intheir official capacity.
(j) The Commission shall have the following duties and powers:
(1) The Commission shall receive, and act upon, in anadjudicatory proceeding, the application of a non-party state to become aneligible state pursuant to § 23-19.9-8(e).
(2) The Commission shall submit an annual report to, andotherwise communicate with, the governor and the presiding officer of eachhouse of the legislature of each party state regarding the activities of theCommission.
(3) Upon request of any party state, the Commission shallmediate disputes that arise among the party states regarding the compact.
(4) The Commission shall, after consultation with hoststates, adopt by rule, maintain and implement a regional low-level wastemanagement plan, in accordance with § 23-19.9-6(a). No regional facilityshall be developed prior to the completion of a regional low-level wastemanagement plan.
(5) The commission shall establish by rule procedures thatare necessary to ensure efficient operation and performance of its duties andfunctions, the orderly gathering and dissemination of information and theprotection of the rights of due process of affected persons.
(6) In accordance with the procedures and criteria set forthin § 23-19.9-6, the Commission shall act on a party state's application toassume 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 ofthe eligible votes of Commission members, host states for the establishment ofneeded regional facilities.
(8) After December 31, 1986, no person shall deliverlow-level waste generated outside the region to a regional facility formanagement, and no regional facility shall accept low-level waste generatedoutside the regions, unless the delivery and acceptance are approved by atwo-thirds ( 2/3) majority of the eligible votes of Commission members and bythe Commission members representing the host state in which the regionalfacility is located. This approval shall be granted only after the host stateand the Commission have made an assessment of the affected facility'scapabilities to accept low-level wastes and of relevant environmental,economic, and public health factors.
(9) Unless otherwise provided by the Commission, alllow-level waste generated within the regions shall be treated, stored fordecay, or delivered to a regional facility or other facility licensed to acceptlow-level waste as of the effective date of this compact. No low-level wastegenerated within the region shall be exported to any facility outside theregion unless the export is approved by a two-thirds ( 2/3) majority of theeligible votes of Commission members and by the Commission members representingeach host state in which a regional facility is available to accept low-levelwaste.
(10) The Commission may appear as an intervenor or party ininterest before any court of law, federal, state or local agency, board orcommission that has jurisdiction over the management of low-level waste. Theauthority to intervene or otherwise appear shall be exercised only upon thevote of a two-thirds ( 2/3) majority of the eligible votes of Commissionmembers. In order to present its views, the Commission may arrange for legalrepresentation, expert testimony, reports, evidence, or other participation, asit deems necessary.
(11) The Commission may impose sanctions, including but notlimited to, fines, suspension of privileges or revocation of party statestatus, in accordance with the procedures established in § 23-19.9-8(g).
(12) The Commission shall review and comment on fees andsurcharges proposed by a site operator or host state, and on any FacilityClosure Plan prepared pursuant to § 23-19.9-4(g). The Commission shallhold a public hearing prior to issuing its comments pursuant to this paragraph.
(13) The Commission shall review the compact legislationevery five (5) years, prior to federal congressional review provided for in thePolicy Act, and may recommend legislative action.
(14) The Commission shall establish a Commission operatingaccount. The Commission shall keep accurate accounts of all receipts anddisbursements. An independent certified public accountant shall annually auditall receipts and disbursements of the Commission operating account and funds,and submit an audit report to the Commission. The audit reports shall be made apart 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 ofmoney, equipment, supplies, materials and services, conditional or otherwise,from any state or the United States or agency or political subdivision of anystate or the United States, or interstate agency, or from any other person. Thenature, amount and condition, if any, attendant upon any donation, loan, orgrant accepted pursuant to this paragraph, together with the identity of thedonor, grantor, or lender, shall be detailed in the annual report of theCommission. The Commission shall by rule establish guidelines for theacceptance of donations, loans, grants of money, equipment, supplies,materials, and services. No donor, grantor, or lender shall derive anyadvantage in any proceeding before the Commission.
(k) The Commission shall conduct adjudicatory proceedings asthe process for formulating an order, unless the order is a decision to:
(1) Issue or not to issue a complaint, summons, or similaraccusation; or
(2) Initiate or not to initiate an investigation,prosecution, or other proceeding before the Commission, another commission oragency, or a court.
(l) The Commission shall conduct adjudicatory proceedings inaccordance with this section. All parties to an adjudicatory proceeding shallbe 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 theproceeding;
(ii) A statement of the legal authority and jurisdictionunder 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 tothe adjudicatory proceeding to present, and respond to, evidence and argumentson all factual and legal questions presented in the proceeding.
(3) Oral proceedings or any part of oral proceedings shall betranscribed on request of any party.
(4) No ex parte communications, or communications for thebenefit of one side only, relevant to the merits of the adjudicatory proceedingshall 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 beinvolved in the decision process of the proceeding.
(5) Findings of fact shall be based exclusively on therecord, 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 rulingsthereon;
(v) Proposed findings and exceptions;
(vi) Any decision, opinion, or report by the officerpresiding at the hearing;
(vii) All staff memoranda or data submitted to the members ofthe Commission in connection with their consideration of the case.
(6) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order, ordefault.
(m) Any party state or agency or political subdivision of anyparty state or agency, or not less than twenty-five (25) other persons residingwithin the region may petition the commission requesting the promulgation,amendment, suspension, or repeal of a rule. The Commission shall prescribe byrule the form for petitions and the procedure for their submission,consideration, and disposition. Within thirty (30) days after submission of apetition, the Commission shall, in writing, affirm or deny the petition,stating the reasons for its action, and may initiate rulemaking proceedings inaccordance 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 intendedaction. The notice shall include a statement of either the terms or substanceof the intended action or a description of the subjects and issues involved,and the time, place, and manner in which interested persons may present theirviews thereon. The notice shall be mailed to all persons who have made a timelyrequest of the Commission for advance notice of its rulemaking proceedings andshall be published in the Secretary of State's Office for each party state, andin at least the two (2) newspapers with the largest circulation in each partystate.
(ii) Grant all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing. In case of substantiverules, opportunity of oral hearing must be granted if requested by any partystate or agency or political subdivision of any party state or agency, or bynot less than twenty-five (25) other persons residing within the region. TheCommission shall fully consider all written and oral submissions respecting theproposed rule. Upon request made by an interested person within thirty (30)days after adoption of a rule, the Commission shall issue a concise statementof the principal arguments for and against its adoption, incorporating in thatstatement its reasons for overruling the arguments urged against its adoption.
(2) If the Commission finds that an imminent peril to thepublic health, safety and welfare requires adoption of a rule upon fewer thanthirty (30) days notice, and states, in writing, its reasons for that finding,it may proceed without prior notice or hearing or upon any abbreviated noticeand hearing that it finds practicable, to adopt an emergency rule. The rule maybe effective for a period of not longer than one hundred twenty (120) days, butthe adoption of an identical rule under this section is not precluded.
(n) A person suffering legal wrong because of Commissionaction, or adversely affected or aggrieved by Commission action, may seekjudicial review of that action.
(1) When the Commission finds that justice so requires, itmay postpone the effective date of action taken by it, pending judicial review.On conditions that may be required and to the extent necessary to preventirreparable injury, the reviewing court, including the court to which a casemay be taken on appeal from or on application of certiorari or other writ to areviewing court, may issue all necessary and appropriate process to postponethe effective date of a Commission action or to preserve status or rightspending conclusion of the review proceedings.
(2) A petition for judicial review under this subsection maybe heard in a court of competent jurisdiction.
(3) The reviewing court shall decide all relevant questionsof law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of a Commission action when presented tothe court and to the extent necessary for a decision. The reviewing court shall:
(i) Compel the Commission action unlawfully withheld orunreasonably delayed; and
(ii) Hold unlawful and set aside Commission action, findings,and conclusions found, in accordance with the standards of the federalAdministrative Procedure Act, 5 U.S.C. § 706(2), to be:
(A) Arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege, orimmunity;
(C) In excess of statutory jurisdiction, authority, orlimitations, or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in a case of reviewof an adjudicatory decision;
(F) Unwarranted by the facts to the extent that the facts aresubject to trial de novo by the reviewing court. In making the previousdeterminations, the court shall review the whole record to those parts of itcited by a party, and due account shall be taken of the rule of prejudicialerror. The court shall not substitute its judgment for that of the Commissionas to decisions of policy or weight of the evidence or questions of fact.
§ 23-19.9-5 The commission. – (a) There is created the Rhode Island – Massachusetts Interstate Low-LevelRadioactive Waste Management Commission. The Commission shall consist ofmembers from each party state to be appointed according to the procedures ofeach party state, except that a host state shall have more members during theperiod that it has an operating regional facility. The Governor of each partystate shall notify the Commission, in writing, of the identities of the memberor members from that state, and of one alternate for each member, who may acton 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 isrepresented by only one member, that member shall be entitled to two (2) votes,when the Commission is taking action affecting that facility. Except asotherwise provided in this compact, Commission action shall require a majorityof the eligible votes of Commission members. A roll call vote shall be requiredupon request of any member.
(c) The Commission shall annually elect, from among itsmembers, a presiding officer and any other officers that it deems appropriate.The Commission may also establish any committees that it deems necessary tocarry out its duties and functions.
(d) The Commission shall meet at least once a year and shallalso meet upon the call of any member. Except as provided in this section, allmeetings of the Commission and its committees shall be open to the public. Nomajority of the members of the Commission, or its committees shall meet inprivate for the purpose of acting on, or deliberating toward action on, anymatter, except as provided in this section. No meeting of the Commission or itscommittees shall be closed to the public for the purpose of holding anexecutive session until the Commission or committee has first convened in anopen session for which public notice has been given, a majority of the membershave voted to go into executive session, a vote of each member has beenrecorded on a roll call vote and entered into the minutes, and the presidingofficer has announced the purpose of the executive session and has statedwhether the Commission or committee will reconvene in public after theexecutive session. An executive session may be held only for the considerationof:
(1) Sensitive personnel matters;
(2) Sensitive litigation matters, the public disclosure ofwhich would adversely affect the Commission's position relative to sensitivelitigation; or
(3) Other legal matters where preservation of theattorney-client privilege is essential.
Failure to comply with the provisions of this section shallinvalidate any actions, hearings or proceedings of the Commission or itscommittees 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 orenvironmental emergency, the Commission shall make a public announcement, atleast one week before the meeting, of the time, place, and subject matter ofthe meeting; whether it is anticipated that any agenda item will requirediscussion in executive session; and the name and phone number of the officialdesignated by the Commission to respond to requests for information about themeeting.
(f) The Commission and its committees shall maintain accuraterecords of their meetings, recording the date, time, place, members present orabsent, and action taken at each meeting. These records shall become publicdocuments; provided, that the record of any executive session may remain secretas long as its publication may defeat the lawful purposes of the executivesession, but no longer. Commission and committee meetings, except those held inexecutive session, may be recorded by any person in attendance by means of atape recorder or other sonic reproduction device, which does not interfere withthe conduct of the meeting.
(g) The Commission may appoint, contract for, compensate, orotherwise provide for a limited staff that it determines necessary to carry outits duties and functions. The staff shall serve at the Commission's pleasureirrespective of the civil service, personnel or other merit laws of any of theparty states or the federal government and shall be compensated from funds ofthe Commission.
(h) At its annual meeting, the Commission shall adopt anannual line item budget for its operations. The Commission's budget shall be apublic document.
(i) The Commission established by this section is a bodycorporate and public, separate and distinct from party states and shall beliable for its own actions on the same basis as the United States may be liableunder the Federal Tort Claims Act (28 U.S.C. § 2674). Liabilities of theCommission shall not be deemed liabilities of the party states. Nor shallmembers of the Commission be personally liable for action taken by them intheir official capacity.
(j) The Commission shall have the following duties and powers:
(1) The Commission shall receive, and act upon, in anadjudicatory proceeding, the application of a non-party state to become aneligible state pursuant to § 23-19.9-8(e).
(2) The Commission shall submit an annual report to, andotherwise communicate with, the governor and the presiding officer of eachhouse of the legislature of each party state regarding the activities of theCommission.
(3) Upon request of any party state, the Commission shallmediate disputes that arise among the party states regarding the compact.
(4) The Commission shall, after consultation with hoststates, adopt by rule, maintain and implement a regional low-level wastemanagement plan, in accordance with § 23-19.9-6(a). No regional facilityshall be developed prior to the completion of a regional low-level wastemanagement plan.
(5) The commission shall establish by rule procedures thatare necessary to ensure efficient operation and performance of its duties andfunctions, the orderly gathering and dissemination of information and theprotection of the rights of due process of affected persons.
(6) In accordance with the procedures and criteria set forthin § 23-19.9-6, the Commission shall act on a party state's application toassume 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 ofthe eligible votes of Commission members, host states for the establishment ofneeded regional facilities.
(8) After December 31, 1986, no person shall deliverlow-level waste generated outside the region to a regional facility formanagement, and no regional facility shall accept low-level waste generatedoutside the regions, unless the delivery and acceptance are approved by atwo-thirds ( 2/3) majority of the eligible votes of Commission members and bythe Commission members representing the host state in which the regionalfacility is located. This approval shall be granted only after the host stateand the Commission have made an assessment of the affected facility'scapabilities to accept low-level wastes and of relevant environmental,economic, and public health factors.
(9) Unless otherwise provided by the Commission, alllow-level waste generated within the regions shall be treated, stored fordecay, or delivered to a regional facility or other facility licensed to acceptlow-level waste as of the effective date of this compact. No low-level wastegenerated within the region shall be exported to any facility outside theregion unless the export is approved by a two-thirds ( 2/3) majority of theeligible votes of Commission members and by the Commission members representingeach host state in which a regional facility is available to accept low-levelwaste.
(10) The Commission may appear as an intervenor or party ininterest before any court of law, federal, state or local agency, board orcommission that has jurisdiction over the management of low-level waste. Theauthority to intervene or otherwise appear shall be exercised only upon thevote of a two-thirds ( 2/3) majority of the eligible votes of Commissionmembers. In order to present its views, the Commission may arrange for legalrepresentation, expert testimony, reports, evidence, or other participation, asit deems necessary.
(11) The Commission may impose sanctions, including but notlimited to, fines, suspension of privileges or revocation of party statestatus, in accordance with the procedures established in § 23-19.9-8(g).
(12) The Commission shall review and comment on fees andsurcharges proposed by a site operator or host state, and on any FacilityClosure Plan prepared pursuant to § 23-19.9-4(g). The Commission shallhold a public hearing prior to issuing its comments pursuant to this paragraph.
(13) The Commission shall review the compact legislationevery five (5) years, prior to federal congressional review provided for in thePolicy Act, and may recommend legislative action.
(14) The Commission shall establish a Commission operatingaccount. The Commission shall keep accurate accounts of all receipts anddisbursements. An independent certified public accountant shall annually auditall receipts and disbursements of the Commission operating account and funds,and submit an audit report to the Commission. The audit reports shall be made apart 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 ofmoney, equipment, supplies, materials and services, conditional or otherwise,from any state or the United States or agency or political subdivision of anystate or the United States, or interstate agency, or from any other person. Thenature, amount and condition, if any, attendant upon any donation, loan, orgrant accepted pursuant to this paragraph, together with the identity of thedonor, grantor, or lender, shall be detailed in the annual report of theCommission. The Commission shall by rule establish guidelines for theacceptance of donations, loans, grants of money, equipment, supplies,materials, and services. No donor, grantor, or lender shall derive anyadvantage in any proceeding before the Commission.
(k) The Commission shall conduct adjudicatory proceedings asthe process for formulating an order, unless the order is a decision to:
(1) Issue or not to issue a complaint, summons, or similaraccusation; or
(2) Initiate or not to initiate an investigation,prosecution, or other proceeding before the Commission, another commission oragency, or a court.
(l) The Commission shall conduct adjudicatory proceedings inaccordance with this section. All parties to an adjudicatory proceeding shallbe 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 theproceeding;
(ii) A statement of the legal authority and jurisdictionunder 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 tothe adjudicatory proceeding to present, and respond to, evidence and argumentson all factual and legal questions presented in the proceeding.
(3) Oral proceedings or any part of oral proceedings shall betranscribed on request of any party.
(4) No ex parte communications, or communications for thebenefit of one side only, relevant to the merits of the adjudicatory proceedingshall 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 beinvolved in the decision process of the proceeding.
(5) Findings of fact shall be based exclusively on therecord, 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 rulingsthereon;
(v) Proposed findings and exceptions;
(vi) Any decision, opinion, or report by the officerpresiding at the hearing;
(vii) All staff memoranda or data submitted to the members ofthe Commission in connection with their consideration of the case.
(6) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order, ordefault.
(m) Any party state or agency or political subdivision of anyparty state or agency, or not less than twenty-five (25) other persons residingwithin the region may petition the commission requesting the promulgation,amendment, suspension, or repeal of a rule. The Commission shall prescribe byrule the form for petitions and the procedure for their submission,consideration, and disposition. Within thirty (30) days after submission of apetition, the Commission shall, in writing, affirm or deny the petition,stating the reasons for its action, and may initiate rulemaking proceedings inaccordance 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 intendedaction. The notice shall include a statement of either the terms or substanceof the intended action or a description of the subjects and issues involved,and the time, place, and manner in which interested persons may present theirviews thereon. The notice shall be mailed to all persons who have made a timelyrequest of the Commission for advance notice of its rulemaking proceedings andshall be published in the Secretary of State's Office for each party state, andin at least the two (2) newspapers with the largest circulation in each partystate.
(ii) Grant all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing. In case of substantiverules, opportunity of oral hearing must be granted if requested by any partystate or agency or political subdivision of any party state or agency, or bynot less than twenty-five (25) other persons residing within the region. TheCommission shall fully consider all written and oral submissions respecting theproposed rule. Upon request made by an interested person within thirty (30)days after adoption of a rule, the Commission shall issue a concise statementof the principal arguments for and against its adoption, incorporating in thatstatement its reasons for overruling the arguments urged against its adoption.
(2) If the Commission finds that an imminent peril to thepublic health, safety and welfare requires adoption of a rule upon fewer thanthirty (30) days notice, and states, in writing, its reasons for that finding,it may proceed without prior notice or hearing or upon any abbreviated noticeand hearing that it finds practicable, to adopt an emergency rule. The rule maybe effective for a period of not longer than one hundred twenty (120) days, butthe adoption of an identical rule under this section is not precluded.
(n) A person suffering legal wrong because of Commissionaction, or adversely affected or aggrieved by Commission action, may seekjudicial review of that action.
(1) When the Commission finds that justice so requires, itmay postpone the effective date of action taken by it, pending judicial review.On conditions that may be required and to the extent necessary to preventirreparable injury, the reviewing court, including the court to which a casemay be taken on appeal from or on application of certiorari or other writ to areviewing court, may issue all necessary and appropriate process to postponethe effective date of a Commission action or to preserve status or rightspending conclusion of the review proceedings.
(2) A petition for judicial review under this subsection maybe heard in a court of competent jurisdiction.
(3) The reviewing court shall decide all relevant questionsof law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of a Commission action when presented tothe court and to the extent necessary for a decision. The reviewing court shall:
(i) Compel the Commission action unlawfully withheld orunreasonably delayed; and
(ii) Hold unlawful and set aside Commission action, findings,and conclusions found, in accordance with the standards of the federalAdministrative Procedure Act, 5 U.S.C. § 706(2), to be:
(A) Arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege, orimmunity;
(C) In excess of statutory jurisdiction, authority, orlimitations, or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in a case of reviewof an adjudicatory decision;
(F) Unwarranted by the facts to the extent that the facts aresubject to trial de novo by the reviewing court. In making the previousdeterminations, the court shall review the whole record to those parts of itcited by a party, and due account shall be taken of the rule of prejudicialerror. The court shall not substitute its judgment for that of the Commissionas to decisions of policy or weight of the evidence or questions of fact.
§ 23-19.9-5 The commission. – (a) There is created the Rhode Island – Massachusetts Interstate Low-LevelRadioactive Waste Management Commission. The Commission shall consist ofmembers from each party state to be appointed according to the procedures ofeach party state, except that a host state shall have more members during theperiod that it has an operating regional facility. The Governor of each partystate shall notify the Commission, in writing, of the identities of the memberor members from that state, and of one alternate for each member, who may acton 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 isrepresented by only one member, that member shall be entitled to two (2) votes,when the Commission is taking action affecting that facility. Except asotherwise provided in this compact, Commission action shall require a majorityof the eligible votes of Commission members. A roll call vote shall be requiredupon request of any member.
(c) The Commission shall annually elect, from among itsmembers, a presiding officer and any other officers that it deems appropriate.The Commission may also establish any committees that it deems necessary tocarry out its duties and functions.
(d) The Commission shall meet at least once a year and shallalso meet upon the call of any member. Except as provided in this section, allmeetings of the Commission and its committees shall be open to the public. Nomajority of the members of the Commission, or its committees shall meet inprivate for the purpose of acting on, or deliberating toward action on, anymatter, except as provided in this section. No meeting of the Commission or itscommittees shall be closed to the public for the purpose of holding anexecutive session until the Commission or committee has first convened in anopen session for which public notice has been given, a majority of the membershave voted to go into executive session, a vote of each member has beenrecorded on a roll call vote and entered into the minutes, and the presidingofficer has announced the purpose of the executive session and has statedwhether the Commission or committee will reconvene in public after theexecutive session. An executive session may be held only for the considerationof:
(1) Sensitive personnel matters;
(2) Sensitive litigation matters, the public disclosure ofwhich would adversely affect the Commission's position relative to sensitivelitigation; or
(3) Other legal matters where preservation of theattorney-client privilege is essential.
Failure to comply with the provisions of this section shallinvalidate any actions, hearings or proceedings of the Commission or itscommittees 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 orenvironmental emergency, the Commission shall make a public announcement, atleast one week before the meeting, of the time, place, and subject matter ofthe meeting; whether it is anticipated that any agenda item will requirediscussion in executive session; and the name and phone number of the officialdesignated by the Commission to respond to requests for information about themeeting.
(f) The Commission and its committees shall maintain accuraterecords of their meetings, recording the date, time, place, members present orabsent, and action taken at each meeting. These records shall become publicdocuments; provided, that the record of any executive session may remain secretas long as its publication may defeat the lawful purposes of the executivesession, but no longer. Commission and committee meetings, except those held inexecutive session, may be recorded by any person in attendance by means of atape recorder or other sonic reproduction device, which does not interfere withthe conduct of the meeting.
(g) The Commission may appoint, contract for, compensate, orotherwise provide for a limited staff that it determines necessary to carry outits duties and functions. The staff shall serve at the Commission's pleasureirrespective of the civil service, personnel or other merit laws of any of theparty states or the federal government and shall be compensated from funds ofthe Commission.
(h) At its annual meeting, the Commission shall adopt anannual line item budget for its operations. The Commission's budget shall be apublic document.
(i) The Commission established by this section is a bodycorporate and public, separate and distinct from party states and shall beliable for its own actions on the same basis as the United States may be liableunder the Federal Tort Claims Act (28 U.S.C. § 2674). Liabilities of theCommission shall not be deemed liabilities of the party states. Nor shallmembers of the Commission be personally liable for action taken by them intheir official capacity.
(j) The Commission shall have the following duties and powers:
(1) The Commission shall receive, and act upon, in anadjudicatory proceeding, the application of a non-party state to become aneligible state pursuant to § 23-19.9-8(e).
(2) The Commission shall submit an annual report to, andotherwise communicate with, the governor and the presiding officer of eachhouse of the legislature of each party state regarding the activities of theCommission.
(3) Upon request of any party state, the Commission shallmediate disputes that arise among the party states regarding the compact.
(4) The Commission shall, after consultation with hoststates, adopt by rule, maintain and implement a regional low-level wastemanagement plan, in accordance with § 23-19.9-6(a). No regional facilityshall be developed prior to the completion of a regional low-level wastemanagement plan.
(5) The commission shall establish by rule procedures thatare necessary to ensure efficient operation and performance of its duties andfunctions, the orderly gathering and dissemination of information and theprotection of the rights of due process of affected persons.
(6) In accordance with the procedures and criteria set forthin § 23-19.9-6, the Commission shall act on a party state's application toassume 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 ofthe eligible votes of Commission members, host states for the establishment ofneeded regional facilities.
(8) After December 31, 1986, no person shall deliverlow-level waste generated outside the region to a regional facility formanagement, and no regional facility shall accept low-level waste generatedoutside the regions, unless the delivery and acceptance are approved by atwo-thirds ( 2/3) majority of the eligible votes of Commission members and bythe Commission members representing the host state in which the regionalfacility is located. This approval shall be granted only after the host stateand the Commission have made an assessment of the affected facility'scapabilities to accept low-level wastes and of relevant environmental,economic, and public health factors.
(9) Unless otherwise provided by the Commission, alllow-level waste generated within the regions shall be treated, stored fordecay, or delivered to a regional facility or other facility licensed to acceptlow-level waste as of the effective date of this compact. No low-level wastegenerated within the region shall be exported to any facility outside theregion unless the export is approved by a two-thirds ( 2/3) majority of theeligible votes of Commission members and by the Commission members representingeach host state in which a regional facility is available to accept low-levelwaste.
(10) The Commission may appear as an intervenor or party ininterest before any court of law, federal, state or local agency, board orcommission that has jurisdiction over the management of low-level waste. Theauthority to intervene or otherwise appear shall be exercised only upon thevote of a two-thirds ( 2/3) majority of the eligible votes of Commissionmembers. In order to present its views, the Commission may arrange for legalrepresentation, expert testimony, reports, evidence, or other participation, asit deems necessary.
(11) The Commission may impose sanctions, including but notlimited to, fines, suspension of privileges or revocation of party statestatus, in accordance with the procedures established in § 23-19.9-8(g).
(12) The Commission shall review and comment on fees andsurcharges proposed by a site operator or host state, and on any FacilityClosure Plan prepared pursuant to § 23-19.9-4(g). The Commission shallhold a public hearing prior to issuing its comments pursuant to this paragraph.
(13) The Commission shall review the compact legislationevery five (5) years, prior to federal congressional review provided for in thePolicy Act, and may recommend legislative action.
(14) The Commission shall establish a Commission operatingaccount. The Commission shall keep accurate accounts of all receipts anddisbursements. An independent certified public accountant shall annually auditall receipts and disbursements of the Commission operating account and funds,and submit an audit report to the Commission. The audit reports shall be made apart 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 ofmoney, equipment, supplies, materials and services, conditional or otherwise,from any state or the United States or agency or political subdivision of anystate or the United States, or interstate agency, or from any other person. Thenature, amount and condition, if any, attendant upon any donation, loan, orgrant accepted pursuant to this paragraph, together with the identity of thedonor, grantor, or lender, shall be detailed in the annual report of theCommission. The Commission shall by rule establish guidelines for theacceptance of donations, loans, grants of money, equipment, supplies,materials, and services. No donor, grantor, or lender shall derive anyadvantage in any proceeding before the Commission.
(k) The Commission shall conduct adjudicatory proceedings asthe process for formulating an order, unless the order is a decision to:
(1) Issue or not to issue a complaint, summons, or similaraccusation; or
(2) Initiate or not to initiate an investigation,prosecution, or other proceeding before the Commission, another commission oragency, or a court.
(l) The Commission shall conduct adjudicatory proceedings inaccordance with this section. All parties to an adjudicatory proceeding shallbe 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 theproceeding;
(ii) A statement of the legal authority and jurisdictionunder 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 tothe adjudicatory proceeding to present, and respond to, evidence and argumentson all factual and legal questions presented in the proceeding.
(3) Oral proceedings or any part of oral proceedings shall betranscribed on request of any party.
(4) No ex parte communications, or communications for thebenefit of one side only, relevant to the merits of the adjudicatory proceedingshall 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 beinvolved in the decision process of the proceeding.
(5) Findings of fact shall be based exclusively on therecord, 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 rulingsthereon;
(v) Proposed findings and exceptions;
(vi) Any decision, opinion, or report by the officerpresiding at the hearing;
(vii) All staff memoranda or data submitted to the members ofthe Commission in connection with their consideration of the case.
(6) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order, ordefault.
(m) Any party state or agency or political subdivision of anyparty state or agency, or not less than twenty-five (25) other persons residingwithin the region may petition the commission requesting the promulgation,amendment, suspension, or repeal of a rule. The Commission shall prescribe byrule the form for petitions and the procedure for their submission,consideration, and disposition. Within thirty (30) days after submission of apetition, the Commission shall, in writing, affirm or deny the petition,stating the reasons for its action, and may initiate rulemaking proceedings inaccordance 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 intendedaction. The notice shall include a statement of either the terms or substanceof the intended action or a description of the subjects and issues involved,and the time, place, and manner in which interested persons may present theirviews thereon. The notice shall be mailed to all persons who have made a timelyrequest of the Commission for advance notice of its rulemaking proceedings andshall be published in the Secretary of State's Office for each party state, andin at least the two (2) newspapers with the largest circulation in each partystate.
(ii) Grant all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing. In case of substantiverules, opportunity of oral hearing must be granted if requested by any partystate or agency or political subdivision of any party state or agency, or bynot less than twenty-five (25) other persons residing within the region. TheCommission shall fully consider all written and oral submissions respecting theproposed rule. Upon request made by an interested person within thirty (30)days after adoption of a rule, the Commission shall issue a concise statementof the principal arguments for and against its adoption, incorporating in thatstatement its reasons for overruling the arguments urged against its adoption.
(2) If the Commission finds that an imminent peril to thepublic health, safety and welfare requires adoption of a rule upon fewer thanthirty (30) days notice, and states, in writing, its reasons for that finding,it may proceed without prior notice or hearing or upon any abbreviated noticeand hearing that it finds practicable, to adopt an emergency rule. The rule maybe effective for a period of not longer than one hundred twenty (120) days, butthe adoption of an identical rule under this section is not precluded.
(n) A person suffering legal wrong because of Commissionaction, or adversely affected or aggrieved by Commission action, may seekjudicial review of that action.
(1) When the Commission finds that justice so requires, itmay postpone the effective date of action taken by it, pending judicial review.On conditions that may be required and to the extent necessary to preventirreparable injury, the reviewing court, including the court to which a casemay be taken on appeal from or on application of certiorari or other writ to areviewing court, may issue all necessary and appropriate process to postponethe effective date of a Commission action or to preserve status or rightspending conclusion of the review proceedings.
(2) A petition for judicial review under this subsection maybe heard in a court of competent jurisdiction.
(3) The reviewing court shall decide all relevant questionsof law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of a Commission action when presented tothe court and to the extent necessary for a decision. The reviewing court shall:
(i) Compel the Commission action unlawfully withheld orunreasonably delayed; and
(ii) Hold unlawful and set aside Commission action, findings,and conclusions found, in accordance with the standards of the federalAdministrative Procedure Act, 5 U.S.C. § 706(2), to be:
(A) Arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege, orimmunity;
(C) In excess of statutory jurisdiction, authority, orlimitations, or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in a case of reviewof an adjudicatory decision;
(F) Unwarranted by the facts to the extent that the facts aresubject to trial de novo by the reviewing court. In making the previousdeterminations, the court shall review the whole record to those parts of itcited by a party, and due account shall be taken of the rule of prejudicialerror. The court shall not substitute its judgment for that of the Commissionas to decisions of policy or weight of the evidence or questions of fact.
