N.Y. Environmental Conservation Law § 23-1719: Non-conforming facilities; conformance to safety criteria; moratorium

§ 23-1719. Non-conforming facilities; conformance to safety criteria;

moratorium.

The legislature finds that existing facilities have been constructed

and are in the process of being used which by reason of their

construction in residential areas or in dangerous proximity to

contiguous populations, or otherwise, are in violation of the terms of

this act, and, having been constructed before its enactment, have not

been approved in accordance with the procedures herein required. Taking

into account the needs of the service areas involved, the substantial

capital investment of the utilities therein, and the changes in

corporate plans that compliance with this title will entail, as against

the hazards posed to surrounding and contiguous areas and their

populations by the potential mishandling or accidental discharge of

liquefied natural or petroleum gas in its cryogenic state, the following

procedure is established to conform existing facilities to the safety

criteria herein prescribed, or, in the alternative, to reexamine the

necessity of their use in current locations, and to require alternative

siting.

1. Effective on passage hereof, and until regulations pursuant to

section 23-1709 are adopted and filed, no liquefied natural or petroleum

gas facility may be constructed, reconstructed, enlarged in storage

capacity, or, if constructed but unused, put into actual use and

operation in this state, and no environmental safety permit pursuant to

section 23-1707 of this title shall be issued for such facility.

2. With regard to any non-conforming liquefied natural or petroleum

gas storage or conversion facility in actual use and operation on

September first, nineteen hundred seventy-six, the following special

procedures shall apply:

a. On or before September first, nineteen hundred seventy-six, or the

thirtieth day after the effective date of this title, whichever shall be

later, the department shall notify any such non-conforming facility of

the provisions of this section and of this title, and shall advise it of

the procedures to be followed hereunder in terms of conformance to

safety criteria or alternative siting.

b. Within thirty days after this title shall become effective, such

non-conforming facility shall give the initial notice required under

subdivision two of section 23-1717, specifying by geographical

description the municipality or municipalities, or parts thereof, within

the state within which it is handling or otherwise using liquefied

natural or petroleum gas, with the nature of such use, storage,

transportation, or conversion, with the amounts thereof in each

location, on a monthly and annual basis, with any projected increase or

decrease in the use or handling thereof at such location or locations

within the state on a five year basis from date of report.

c. Within sixty days thereafter, the department shall complete the

consultation and report required by subdivisions three and four of

section 23-1717, and the notification required by the first sentence of

subdivision five of that section. Thereafter, further proceedings under

subdivision five shall be integrated with the hearing hereinafter

directed to be had with regard to the non-conforming facility; and the

implementation of the balance of section 23-1717, with regard to

training and qualification of municipal fire department personnel, shall

be effected in accordance with the determination of the department with

regard to the non-conforming facility.

d. Within one hundred and eighty days after this title shall become

effective, a public hearing or hearings shall be held in the area or

areas in which the non-conforming facility or facilities are located.

Such hearing or hearings shall be held on sixty days' notice and as

otherwise provided in subdivisions two and three of section 23-1711.

Notice shall be given by the facility or facilities in accordance with

subdivision three thereof, and public participation shall be afforded by

appropriate location and scheduling, and the opportunity to submit oral

or written statements for the record.

e. In the adjudicatory phase of the hearing or hearings, evidence may

be received relating to the criteria set forth in section 23-1709 as

they relate to the non-conforming facility, and with regard to the

capability of municipal fire department personnel to control and

extinguish fire resulting from mishandling and accidental release of

liquefied natural and petroleum gas during its storage, transportation,

or conversion. At the time of the notice of hearing the department shall

make public its report under paragraph c of subdivision two of this

section, together with all information secured by it with respect to the

training and qualification of the municipal fire department or

departments and their personnel to control or extinguish fires related

to the use of the non-conforming facility, and additional oral testimony

by the municipal fire department or departments with respect thereto

shall be required at the hearing.

3. Upon the basis of the record the department shall render a

decision, (a) permitting the facility to continue at the location, under

such terms, conditions, or modification of procedures as the department

may deem appropriate; or (b) directing discontinuance of the facility

upon a showing of alternate means of meeting the service needs currently

satisfied thereby, or upon a showing that the service needs currently

satisfied thereby are not sufficient to outweigh the public interest in

safety within the terms of section 23-1711. Location within a

residential area or in dangerous proximity to contiguous populations

shall not, in and of themselves, be determinative with respect to the

department determination, but shall be considered along with the other

factors set forth in section 23-1709 as criteria for siting, and the

information elicited before and at the hearing with respect to the

training and qualification of municipal fire department personnel to

control or extinguish fires related to the facility under subdivision

two of this section, in determining whether or not to permit

continuation of the facility at the existing location. In the event it

is determined to permit continuation of the facility, it shall be under

such limitations in terms of time and conditions as will permit the

department currently to review the status of the facility, and to

integrate its continued operation with the regulation of other

facilities and activities subject to this title to be certified under

sections 23-1707 and 23-1713. In the event it is determined to direct

discontinuance of the facility, it may be effected over the course of a

phase-out period not to exceed three years from the date of

determination, in order to arrange for alternate facilities or other

means of meeting approved service needs of the area currently served by

the facility. In connection with the foregoing, it shall be appropriate

at the hearing or hearings provided under this section to receive

evidence with regard to capital investment in any such non-conforming

facility, the extent of amortization and of tax writeoff thereof,

adaptability for alternate use, availability of alternate siting or

means of meeting demonstrated and approved service needs of the area.

With regard thereto, it shall be appropriate to solicit information and

recommendations from the public service commission with respect to

consumer needs and the meeting thereof in economical fashion consistent

with the requirements of this title, and from the state energy office,

if established, with regard to state energy policy. The cost of the

hearing and of allocated departmental overhead shall be assessed against

the non-conforming facility pursuant to subdivisions two and three of

section 23-1715. It is anticipated that any hearing or hearings held

under this section with regard to non-conforming facilities will also

relate to the function of the department in adopting regulations

establishing criteria for the siting of liquefied natural and petroleum

gas facilities, and such shall also be considered in the allocation of

expense with regard to hearing or hearings held under this section.