§ 23-19.9-6 - Host state selection and development of regional facilities.
SECTION 23-19.9-6
§ 23-19.9-6 Host state selection anddevelopment 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 providefor safe and efficient management with the region. The plan shall be annuallyreviewed and revised by rule, as necessary, every five (5) years. TheCommission may retain consultants to assist in developing the plan and shallgather necessary data in cooperation with appropriate agencies in each partystate. The primary consideration guiding the development of the plan shall bethe protection of public health, safety, and the environment. The plan shallinclude, but not be limited to:
(1) A classification system for all low-level wastes based oncharacteristics 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 offull-time-equivalent employees involved in these activities; current andprojected low-level waste volume, characteristics and curies; current andprojected management activities including on-site storage and storage for decaycapabilities; and packaging and transportation practices;
(3) An inventory of all regional facilities, includinginformation on the size, capacity, location, and projected operating life ofeach facility, and the waste being handled at each facility;
(4) Consistent with considerations for the protection ofpublic health, safety, and the environment, a determination of the type andcapacity of regional facilities that are necessary or projected to be necessaryto accept the low-level waste generated within the region for management;
(5) A review and analysis of current, developing andprojected regional management technologies and practices;
(6) A review and analysis of fees charged generators toensure the safe, environmentally sound operation of each regional facility, toensure that the licensee has sufficient insurance protection against personalinjury and property damage, including third party liability insurancethroughout the operation, closure, post-closure observation and maintenance,and institutional control periods; and to ensure the availability of funds forsurveillance, cleanup and restoration of the surrounding area.
(7) A review and analysis of party state efforts to encouragesource and volume reduction pursuant to the guidelines established by the hoststate or states.
(b) The Commission shall adopt by rule both interim andemergency storage plans to go into effect in the event that no regionalfacility is operational at any time after December 31, 1986. The plans mayinclude contractual agreements with facilities located outside the region.
(1) If the Commission determines, in accordance with theprovisions of this section, that an interim storage facility must be developedwithin the regions, the interim storage facility must have the consent of thestate in which it is located, and shall not remain in operation longer thanfive (5) years without the consent of that state.
(2) In the event that a regional facility closes prior to itsscheduled closing date, the Commission shall:
(i) Implement the interim storage and disposal plans adoptedpursuant to this section; and
(ii) Inform the governor of the party state scheduled to hostthe next regional facility to bring that facility into operation.
(c) The Commission shall adopt by rule criteria andprocedures for approving, in an adjudicatory proceeding, a party state'sapplication to assume responsibility to host a regional facility within itsborders. These criteria shall include, but not be limited to: the capability ofthe party state to host a regional facility in a timely manner and to ensureits operation for a twenty (20) year period, temporary closure, closure,post-closure observation and maintenance, and institutional control in a mannerconsistent 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 willbe closed, or whenever the Commission has made a determination, pursuant tosubdivision (4) of section (a), that additional regional facility capacity isnecessary or projected to be necessary, and a party state submits to theCommission, in accordance with the procedures established pursuant tosubsection (c), an application to assume responsibility for hosting a regionalfacility, the Commission shall conduct an adjudicatory proceeding to considerthe application. Consistent with the criteria established pursuant tosubsection (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 denythe application, or to make recommendations that will allow the state toreceive later approval.
(1) Upon approval of a party state's application pursuant tothis section, the state shall become a host state on the date specified in theapproval.
(2) The Commission may approve an application, in which aparty state assumes the responsibility to host a regional facility upon theclosure 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 beclosed, or whenever the Commission has made a determination pursuant tosubdivision (4) of subsection (a), that additional regional facility capacityis necessary or projected to be necessary, and no application submittedpursuant to subsections (c) and (d) is pending before the Commission which, ifapproved, would result in the development of additional capacity adequate toaccept the low-level waste generated within the region for management, theCommission shall initiate the process stated in this section to select a stateto host a regional facility in a timely manner and to ensure its operation fora twenty (20) year period. The primary criterion guiding this process shall bethe protection of public health, safety and the environment. However, no stateshall be required to host two (2) successive regional facilities.
(1) The Commission shall notify all party states, other thanthe host state in which the most recently developed regional facility islocated, that they are potential host states for the purpose of undertaking themacroscreening review established in subdivision (2) of this subsection. Thenotification shall be made to the governor and the presiding officer of eachhouse of the legislature of each party state, and shall describe the process tobe used to select a host state.
(2) The Commission shall, after consultation with appropriatelicensing and regulatory authorities, adopt by rule exclusionary criteria toidentify 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 coastalhigh-hazard area;
(iii) Subject to frequent flooding or ponding or which aregenerally not well drained;
(iv) Within coastal or freshwater wetlands or on a barrierbeach;
(v) Within which is located an existing or projected publicdrinking water supply;
(vi) Within the watershed of surface waters classified asclass "A", pursuant to the U.S. Clean Water Act [33 U.S.C. § 1251 etseq.];
(vii) Over an aquifer designated as a sole source aquiferpursuant to the U.S. Safe Drinking Water Act [42 U.S.C. § 300f etseq.];
(viii) Restricted by a party state because of their criticalenvironmental nature;
(ix) In a lower drainage basin where the amount of runoffcould erode or inundate a facility site;
(x) Where the water table is of sufficient height to allowperennial 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 predictionof 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 threatenedspecies of plants or animals;
(xvi) Of historical or architectural significance. Theapplication of this exclusionary criteria shall not be subject to waiver by theconsultant or the Commission.
(3) The Commission shall retain the services of anindependent consultant to map and macroscreen each potential host state in theregion in accordance with the criteria adopted pursuant to subdivision (2) ofthis subsection. The independent consultant shall consider recommendations andcomments from any person and shall hold public meetings in each potential hoststate to accept recommendations and comments. Notice of public meetings shallbe made at least fourteen (14) days in advance and shall be published in theSecretary of State's office for the state in which the meeting is to be heldand in at least the two (2) newspapers with the largest circulations in thatstate. In addition, notice shall be mailed to all persons who make timelyrequest of the Commission for an opportunity to comment and to the governor andthe presiding officer of each house of the legislature of each potential hoststate.
(4) Upon acceptance by the Commission of the independentconsultant's report, the Commission shall transmit a copy of the report to thegovernor 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 awritten response to the report.
(5) If the entire land area of any potential host state hasbeen identified in the independent consultant's report as unsuitable as aregional facility site, that state shall be excluded from further considerationfor hosting a regional facility. Any party state that disputes the resultscontained in the independent consultant's report and believes that its entireland area is unsuitable as a regional facility site shall have the opportunityto present its objections in an adjudicatory proceeding before the Commission.This proceeding shall follow the procedures established in § 23-19.9-5except that:
(i) The hearing shall be conducted within the borders of theparty state disputing the report's results; and
(ii) A two-thirds ( 2/3) majority of the eligible votes ofCommission members shall be required to exclude the party state from furtherconsideration for hosting a regional facility. The Commission shall commencethe adjudicatory proceeding no sooner than ninety (90) days and no later thanone hundred twenty (120) days after receipt of a state's claim that it shouldbe excluded from further consideration for hosting a regional facility.
(6) Upon expiration of the time for party states to respondto the independent consultant's report or upon the completion of theadjudicatory proceeding provided for in this section, the Commission shallissue a list of states to be excluded from further consideration for hosting aregional facility. That list shall include both any state identified in thereport as unsuitable as a regional facility site and any state which theCommission has voted to exclude from further consideration in accordance withthis section. The Commission shall notify all party states not excluded by theprocess stated in this section that they are potential host states. Thenotification shall indicate that the state has within its boundaries ageographic area or areas that meet the environmental criteria establishedpursuant 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 Massachusettsbased on a comparison of averages over the years 1982-1984 shall be exempt frominitial host state responsibility. These states shall continue to be exempt aslong as they generate less than the twenty-five percent (25%) threshold over asuccessive three (3) year period. Once a state generates an average oftwenty-five percent (25%) or more of the volume or curies generated byMassachusetts over a successive three (3) year period, it shall be designatedas a "Host State" having a thirty (30) year period by the Commission and shallimmediately initial development of a regional facility to be operational withinfive (5) years. The host state shall be prepared to accept its regionalfacility low-level waste at least equal to that generated in the state. WithCommission approval, any party state may volunteer to host a regional facility.The percentage of waste from each state shall be determined by either a cubicfoot volume or total curie content, whichever is greater.