32:31-5. Commission

Article IV. The Commission

a. There is created the Northeast Interstate Low-Level Radioactive Waste Commission. The commission shall consist of one member from each party state to be appointed by the Governor according to procedures of each party state, except that a host state shall have two members during the period that it has an operating regional facility. The Governor shall notify the commission in writing of the identity of the member and one alternate, who may act on behalf of the member only in the member's absence.

b. Each commission member shall be entitled to one vote. No action of the commission shall be binding unless a majority of the total membership cast their vote in the affirmative.

c. The commission shall elect annually from among its members a presiding officer and such other officers as it deems appropriate. The commission shall adopt and publish, in convenient form, rules and regulations as are necessary for due process in the performance of its duties and powers under this compact.

d. The commission shall meet at least once a year and shall also meet upon the call of the presiding officer, or upon the call of a party state member.

e. All meetings of the commission shall be open to the public with reasonable prior public notice. The commission may, by majority vote, close a meeting to the public for the purpose of considering sensitive personnel or legal matters. All commission actions and decisions shall be made in open meetings and appropriately recorded. A roll call vote may be required upon request of any party state or the presiding officer.

f. The commission may establish such committees as it deems necessary.

g. The commission may appoint, contract for, and compensate limited staff as 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. The commission shall adopt an annual budget for its operations.

i. The commission shall have the following duties and powers:

(1) The commission shall receive and act on the application of a nonparty state to become an eligible state in accordance with Article VII e.

(2) The commission shall receive and act on the application of an eligible state to become a party state in accordance with Article VII b.

(3) The commission shall submit an annual report to and otherwise communicate with the governors and the presiding officer of each body of the legislature of the party states regarding the activities of the commission.

(4) Upon request of party states, the commission shall mediate disputes which arise between the party states regarding this compact.

(5) The commission shall develop, adopt and maintain a regional management plan to ensure safe and effective management of waste within the region, pursuant to Article V.

(6) The commission may conduct legislative or adjudicatory hearings, and require reports, studies, evidence and testimony as are necessary to perform its duties and functions.

(7) The commission shall establish by regulation, after public notice and opportunity for comment, procedural regulations as deemed necessary to ensure efficient operation, the orderly gathering of information, and the protection of the rights of due process of affected persons.

(8) In accordance with the procedures and criteria set forth in Article V, the commission shall accept a host state's proposed facility as a regional facility.

(9) In accordance with the procedures and criteria set forth in Article V, the commission may designate, by a two-thirds vote, host states for the establishment of needed regional facilities. The commission shall not exercise this authority unless the party states have failed to voluntarily pursue the development of these facilities.

(10) The commission may require of and obtain from party states, eligible states seeking to become party states, and non-party states seeking to become eligible states, data and information necessary for the implementation of commission responsibilities.

(11) The commission may enter into agreements with any person, state, regional body, or group of states for the importation of waste into the region and for the right of access to facilities outside the region for waste generated within the region. This authorization to import requires a two-thirds majority vote of the commission, including an affirmative vote of the representatives of the host state in which any affected regional facility is located. This shall be done only after the commission and the host state have made an assessment of the affected facilities' capability to handle these wastes and of relevant environmental, economic, and public health factors, as defined by the appropriate regulatory authorities.

(12) The commission may, upon petition, grant an individual generator or group of generators in the region the right to export wastes to a facility located outside the region. A grant of right shall be for a period of time and amount of waste and on such other terms and conditions as determined by the commission and approved by the affected host states.

(13) 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 wastes. The authority to intervene or otherwise appear shall be exercised only after a two-thirds vote of the commission. In order to represent its views, the commission may arrange for any expert testimony, reports, evidence or other participation as it deems necessary.

(14) The commission may impose sanctions, including but not limited to, fines, suspension of privileges or revocation of the membership of a party state in accordance with Article VII. The commission shall have the authority to revoke, in accordance with Article VII g., the membership of a party state that creates unreasonable barriers to the siting of a needed regional facility or refuses to accept host state responsibilities upon designation by the commission.

(15) The commission shall establish by regulation criteria for and shall review the fee and surcharge systems in accordance with Articles V and IX.

(16) The commission shall review the capability of party states to ensure the siting, operation, post-closure observation and maintenance, and institutional control of any facility within its borders.

(17) The commission shall review the compact legislation every five years prior to federal congressional review provided for in the act, and may recommend legislative action.

(18) The commission has the authority to develop and provide to party states rules, regulations and guidelines as it deems appropriate for the efficient, consistent, fair and reasonable implementation of the compact.

j. There is hereby established a commission operating account. The commission is authorized to expend moneys from the account for the expenses of any staff and consultants designated under section g. of this article and for official commission business. Financial support for the commission account shall be provided as follows:

(1) Each eligible state, upon becoming a party state, shall pay $70,000.00 to the commission, which shall be used for administrative costs of the commission.

(2) The commission shall impose a "commission surcharge" per unit of waste received at any regional facility as provided in Article V.

(3) Until such time as at least one regional facility is in operation and accepting waste for management, or to the extent that revenues under paragraphs (1) and (2) of this section are unavailable or insufficient to cover the approved annual budget of the commission, each party state shall pay an apportioned amount of the difference between the funds available and the total budget in accordance with the following formula:

(a) 20% in equal shares;

(b) 30% in the proportion that the population of the party state bears to the total population of all party states, according to the most recent United States census;

(c) 50% in the proportion that the waste generated for management in each party state bears to the total waste generated for management in the region for the most recent calendar year in which reliable data are available, as determined by the commission.

k. The commission shall keep accurate accounts of all receipts and disbursements. An independent certified public accountant shall annually audit all receipts and disbursements of commission accounts and funds and submit an audit report to the commission. The audit report shall be made a part of the annual report of the commission required by Article IV i.(3).

l. The commission may accept, receive, utilize and dispose for any of its purposes and functions any donations, loans, grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation. 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. This shall provide that no donor, grantor or lender may derive unfair or unreasonable advantage in any proceeding before the commission.

m. The commission herein established is a body corporate and politic, separate and distinct from the party states and shall be so liable for its own actions. 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.

(1) The commission shall not be responsible for any costs or expenses associated with the creation, operation, closure, postclosure observation and maintenance, and institutional control of any regional facility, or any associated regulatory activities of the party states.

(2) Except as otherwise provided herein, this compact shall not be construed to alter the incidence of liability of any kind for any act, omission, or course of conduct. Generators, shippers and carriers of wastes, and owners and operators of sites shall be liable for their acts, omissions, conduct, or relationships in accordance with all laws relating thereto.

n. The United States district courts in the District of Columbia shall have original jurisdiction of all actions brought by or against the commission. Any such action initiated in a state court shall be removed to the designated United States district court in the manner provided by Act of June 25, 1948 as amended (28 U.S.C. s. 1446). This section shall not alter the jurisdiction of the United States Court of Appeals for the District of Columbia Circuit to review the final administrative decisions of the commission as set forth in the paragraph below.

o . The United States Court of Appeals for the District of Columbia Circuit shall have jurisdiction to review the final administrative decisions of the commission.

(1) Any person aggrieved by a final administrative decision may obtain review of the decision by filing a petition for review within 60 days after the commission's final decision.

(2) In the event that review is sought of the commission's decision relative to the designation of a host state, the Court of Appeals shall accord the matter an expedited review, and, if the court does not rule within 90 days after a petition for review has been filed, the commission's decision shall be deemed to be affirmed.

(3) The courts shall not substitute their judgment for that of the commission as to the decisions of policy or weight of the evidence on questions of fact. The court may affirm the decision of the commission or remand the case for further proceedings if it finds that the petitioner has been aggrieved because the finding, inferences, conclusions or decisions of the commission are:

(a) In violation of the Constitution of the United States;

(b) In excess of the authority granted to the commission by this compact;

(c) Made upon unlawful procedure to the detriment of any person;

(d) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(4) The commission shall be deemed to be acting in a legislative capacity except in those instances where it decides, pursuant to its rules and regulations, that its determinations are adjudicatory in nature.

L.1983, c. 329, s. 2, Art. IV, eff. Sept. 1, 1983.