§ 23-19.9-6. Host state selection and development of regional facilities. (a) The Commission shall, after consultation with host states adopt by rule, maintain, and implement a regional low-level waste management plan to provide for safe and efficient management with the region. The plan shall be annually reviewed and revised by rule, as necessary, every five (5) years. The Commission may retain consultants to assist in developing the plan and shall gather necessary data in cooperation with appropriate agencies in each party state. The primary consideration guiding the development of the plan shall be the protection of public health, safety, and the environment. The plan shall include, but not be limited to:

(1) A classification system for all low-level wastes based on characteristics including, but not limited to, radiological half-life, radiological toxicity, chemical toxicity, and physical form of the waste;

(2) An inventory of all generators within the region, including information on: the location of the generator; its products, services, clinical procedures, teaching or research activities; the number of full-time-equivalent employees involved in these activities; current and projected low-level waste volume, characteristics and curies; current and projected management activities including on-site storage and storage for decay capabilities; and packaging and transportation practices;

(3) An inventory of all regional facilities, including information on the size, capacity, location, and projected operating life of each facility, and the waste being handled at each facility;

(4) Consistent with considerations for the protection of public health, safety, and the environment, a determination of the type and capacity of regional facilities that are necessary or projected to be necessary to accept the low-level waste generated within the region for management;

(5) A review and analysis of current, developing and projected regional management technologies and practices;

(6) A review and analysis of fees charged generators to ensure the safe, environmentally sound operation of each regional facility, to ensure that the licensee has sufficient insurance protection against personal injury and property damage, including third party liability insurance throughout the operation, closure, post-closure observation and maintenance, and institutional control periods; and to ensure the availability of funds for surveillance, cleanup and restoration of the surrounding area.

(7) A review and analysis of party state efforts to encourage source and volume reduction pursuant to the guidelines established by the host state or states.

(b) The Commission shall adopt by rule both interim and emergency storage plans to go into effect in the event that no regional facility is operational at any time after December 31, 1986. The plans may include contractual agreements with facilities located outside the region.

(1) If the Commission determines, in accordance with the provisions of this section, that an interim storage facility must be developed within the regions, the interim storage facility must have the consent of the state in which it is located, and shall not remain in operation longer than five (5) years without the consent of that state.

(2) In the event that a regional facility closes prior to its scheduled closing date, the Commission shall:

(i) Implement the interim storage and disposal plans adopted pursuant to this section; and

(ii) Inform the governor of the party state scheduled to host the next regional facility to bring that facility into operation.

(c) The Commission shall adopt by rule criteria and procedures for approving, in an adjudicatory proceeding, a party state's application to assume responsibility to host a regional facility within its borders. These criteria shall include, but not be limited to: the capability of the party state to host a regional facility in a timely manner and to ensure its operation for a twenty (20) year period, temporary closure, closure, post-closure observation and maintenance, and institutional control in a manner consistent with protecting the public health and safety and the environment; and the anticipated economic feasibility of the proposed regional facility.

(d) Upon notification that an existing regional facility will be closed, or whenever the Commission has made a determination, pursuant to subdivision (4) of section (a), that additional regional facility capacity is necessary or projected to be necessary, and a party state submits to the Commission, in accordance with the procedures established pursuant to subsection (c), an application to assume responsibility for hosting a regional facility, the Commission shall conduct an adjudicatory proceeding to consider the application. Consistent with the criteria established pursuant to subsection (c), the Commission shall act upon the vote of a two-thirds (2/3) majority of the eligible votes of Commission members, either to approve or deny the application, or to make recommendations that will allow the state to receive later approval.

(1) Upon approval of a party state's application pursuant to this section, the state shall become a host state on the date specified in the approval.

(2) The Commission may approve an application, in which a party state assumes the responsibility to host a regional facility upon the closure of another regional facility, currently in development or operation, but the Commission shall not approve more than one such successor state.

(e) Upon notification that an existing facility will be closed, or whenever the Commission has made a determination pursuant to subdivision (4) of subsection (a), that additional regional facility capacity is necessary or projected to be necessary, and no application submitted pursuant to subsections (c) and (d) is pending before the Commission which, if approved, would result in the development of additional capacity adequate to accept the low-level waste generated within the region for management, the Commission shall initiate the process stated in this section to select a state to host a regional facility in a timely manner and to ensure its operation for a twenty (20) year period. The primary criterion guiding this process shall be the protection of public health, safety and the environment. However, no state shall be required to host two (2) successive regional facilities.

(1) The Commission shall notify all party states, other than the host state in which the most recently developed regional facility is located, that they are potential host states for the purpose of undertaking the macroscreening review established in subdivision (2) of this subsection. The notification shall be made to the governor and the presiding officer of each house of the legislature of each party state, and shall describe the process to be used to select a host state.

(2) The Commission shall, after consultation with appropriate licensing and regulatory authorities, adopt by rule exclusionary criteria to identify all geographic areas that are unsuitable as regional facility sites. That criteria shall exclude, at least, all geographic areas:

(i) Containing exploitable natural resources;

(ii) Within a five hundred (500) year floodplain or coastal high-hazard area;

(iii) Subject to frequent flooding or ponding or which are generally not well drained;

(iv) Within coastal or freshwater wetlands or on a barrier beach;

(v) Within which is located an existing or projected public drinking water supply;

(vi) Within the watershed of surface waters classified as class "A", pursuant to the U.S. Clean Water Act [33 U.S.C. § 1251 et seq.];

(vii) Over an aquifer designated as a sole source aquifer pursuant to the U.S. Safe Drinking Water Act [42 U.S.C. § 300f et seq.];

(viii) Restricted by a party state because of their critical environmental nature;

(ix) In a lower drainage basin where the amount of runoff could erode or inundate a facility site;

(x) Where the water table is of sufficient height to allow perennial or other ground water intrusion to contact the waste;

(xi) Where ground water is discharged to the surface;

(xii) Where tectonic processes such as faulting, folding, seismic activity, or vulcanism may preclude defensible modeling and prediction of long-term impacts;

(xiii) Where surface geologic processes such as mass wasting, erosion, slumping, landsliding, or weathering may indicate instability;

(xiv) Where ground water intrusion, perennial or otherwise, could impact the facility's ability to isolate the waste;

(xv) Critical to the habitat of endangered or threatened species of plants or animals;

(xvi) Of historical or architectural significance. The application of this exclusionary criteria shall not be subject to waiver by the consultant or the Commission.

(3) The Commission shall retain the services of an independent consultant to map and macroscreen each potential host state in the region in accordance with the criteria adopted pursuant to subdivision (2) of this subsection. The independent consultant shall consider recommendations and comments from any person and shall hold public meetings in each potential host state to accept recommendations and comments. Notice of public meetings shall be made at least fourteen (14) days in advance and shall be published in the Secretary of State's office for the state in which the meeting is to be held and in at least the two (2) newspapers with the largest circulations in that state. In addition, notice shall be mailed to all persons who make timely request of the Commission for an opportunity to comment and to the governor and the presiding officer of each house of the legislature of each potential host state.

(4) Upon acceptance by the Commission of the independent consultant's report, the Commission shall transmit a copy of the report to the governor of each party state. Within ninety (90) days of receipt of the report, the governor of each potential host state shall submit to the Commission a written response to the report.

(5) If the entire land area of any potential host state has been identified in the independent consultant's report as unsuitable as a regional facility site, that state shall be excluded from further consideration for hosting a regional facility. Any party state that disputes the results contained in the independent consultant's report and believes that its entire land area is unsuitable as a regional facility site shall have the opportunity to present its objections in an adjudicatory proceeding before the Commission. This proceeding shall follow the procedures established in § 23-19.9-5 except that:

(i) The hearing shall be conducted within the borders of the party state disputing the report's results; and

(ii) A two-thirds (2/3) majority of the eligible votes of Commission members shall be required to exclude the party state from further consideration for hosting a regional facility. The Commission shall commence the adjudicatory proceeding no sooner than ninety (90) days and no later than one hundred twenty (120) days after receipt of a state's claim that it should be excluded from further consideration for hosting a regional facility.

(6) Upon expiration of the time for party states to respond to the independent consultant's report or upon the completion of the adjudicatory proceeding provided for in this section, the Commission shall issue a list of states to be excluded from further consideration for hosting a regional facility. That list shall include both any state identified in the report as unsuitable as a regional facility site and any state which the Commission has voted to exclude from further consideration in accordance with this section. The Commission shall notify all party states not excluded by the process stated in this section that they are potential host states. The notification shall indicate that the state has within its boundaries a geographic area or areas that meet the environmental criteria established pursuant to subdivision (2) of this subsection.

(7) Party states which generate less than twenty-five percent (25%) of the volume or curies of low-level waste generated by Massachusetts based on a comparison of averages over the years 1982-1984 shall be exempt from initial host state responsibility. These states shall continue to be exempt as long as they generate less than the twenty-five percent (25%) threshold over a successive three (3) year period. Once a state generates an average of twenty-five percent (25%) or more of the volume or curies generated by Massachusetts over a successive three (3) year period, it shall be designated as a "Host State" having a thirty (30) year period by the Commission and shall immediately initial development of a regional facility to be operational within five (5) years. The host state shall be prepared to accept its regional facility low-level waste at least equal to that generated in the state. With Commission approval, any party state may volunteer to host a regional facility. The percentage of waste from each state shall be determined by either a cubic foot volume or total curie content, whichever is greater.

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