N.Y. Environmental Conservation Law § 27-0908: Hazardous waste reduction plans

§ 27-0908. Hazardous waste reduction plans.

1. When used in this section, the following terms shall have the

following definitions:

a. "Acute hazardous waste" means any waste identified or listed as

such in the regulations promulgated under section 27-0903 of this title.

b. "Generator" means any person, by site, whose act or process

produces hazardous waste or whose act first causes a hazardous waste to

become subject to regulation.

c. "Hazardous waste" means any waste identified or listed as such in

the regulations promulgated under section 27-0903 of this title,

including "acute hazardous waste".

2. For the purposes of this section, hazardous wastes generated by any

corrective action required pursuant to this title for a release from a

hazardous waste treatment, storage or disposal facility, or by the

remediation of an inactive hazardous waste disposal site as defined in

subdivision two of section 27-1301 of this article, or by the cleanup of

a release to the environment reported pursuant to article 17, 37 or 40

of this chapter, or demolition and construction debris, or wastes which

are otherwise subject to the requirements of this section shall not be

included in the calculation of the amount of hazardous wastes generated

by a person annually, nor shall such wastes be subject to the waste

reduction planning requirements for this section.

3. a. Any generator of equal to or greater than one thousand tons of

hazardous waste in the calendar year nineteen hundred ninety or any

subsequent calendar year shall prepare, implement and submit to the

department a written hazardous waste reduction plan on or before July

first of the following calendar year.

b. Any generator of equal to or greater than five hundred tons of

hazardous waste in the calendar year nineteen hundred ninety-one or any

subsequent calendar year shall prepare, implement and submit to the

department a written hazardous waste reduction plan on or before July

first of the following calendar year.

c. Any generator of equal to or greater than fifty tons of hazardous

waste in the calendar year nineteen hundred ninety-two or any subsequent

calendar year shall prepare, implement and submit to the department a

written hazardous waste reduction plan on or before July first of the

following calendar year.

d. Any generator of equal to or greater than twenty-five tons of

hazardous waste in the calendar year nineteen hundred ninety-five or any

subsequent calendar year shall prepare, implement and submit to the

department a written hazardous waste reduction plan on or before July

first of the following calendar year.

e. Notwithstanding any other provision of this subdivision, any

generator required to hold a hazardous waste storage, treatment or

disposal permit for the on-site management of hazardous waste pursuant

to section 27-0913 of this title shall prepare and submit to the

department, a written hazardous waste reduction plan on or before July

first, nineteen hundred ninety-one or as part of any new permit

application, and shall thereafter implement the plan.

4. The hazardous waste reduction plan required under this section

shall include:

a. an identification of the amounts and types of any acute hazardous

waste as reported pursuant to subdivision six of section 27-0907 of this

title; and an identification of the amounts and types of hazardous

wastes generated during the previous calendar year which are either (i)

in amounts greater than five tons or (ii) which account for at least

ninety percent of all hazardous wastes generated by such generator at

that facility, whichever represents the greater amount of hazardous

wastes. For each such hazardous waste, such plan shall also include:

(1) a description of the process, operation or activity that resulted

in the generation of such waste;

(2) a calculation of the amount of such waste generated per unit of

production output or raw material used, or other appropriate index, or a

demonstration why the calculation cannot be provided; and

(3) an estimate, and bases for such estimate, of the costs incurred

for managing such waste, including but not limited to, storage costs,

on-site treatment or disposal costs, transportation costs, commercial

disposal fees and regulatory fees or a demonstration why such

calculation cannot be provided.

b. For each such waste identified pursuant to paragraph a of this

subdivision, an evaluation of the technical feasibility and economic

practicability, including return on investment, of implementing waste

reduction processes, technologies or operational changes to reduce or

eliminate the generation of such waste. Such evaluation shall consider

the technical feasibility and economic practicability, where applicable,

of:

(i) substitution of non-toxic or less toxic inputs to the production

process which result in a reduction in the volume or toxicity of such

waste;

(ii) reformulation or redesign of end products to eliminate production

inputs or production processes that result in the generation of such

waste;

(iii) modification or redesign of production processes, technologies

or equipment which result in a reduction in the volume or toxicity of

such waste;

(iv) changes in materials usage, handling and storage practices,

including improved inventory control, preventive maintenance, spill and

leak prevention, and waste segregation, which will reduce the volume or

toxicity of such waste;

(v) the use of closed loop reclamation, reuse or recycling processes

or technologies which directly recycle such wastes back into the

production process; and

(vi) the use of on-site or off-site recycling technologies or

processes that reduce the amount of such waste that must be treated or

disposed of.

c. Establishment and description of a program for implementing

technically feasible and economically practicable waste reduction

alternatives. Such program shall include:

(i) establishment of a general corporate, facility or organizational

waste reduction policy, including a statement of waste reduction goals,

along with a plan for communicating such policy and statement of goals

to relevant employees and management personnel;

(ii) a time schedule for implementing each technically feasible and

economically practicable waste reduction technology, process or

operational change identified pursuant to paragraph b of this

subdivision;

(iii) designation of the office or department responsible for

implementing the waste reduction plan;

(iv) a method of waste reduction measurement which will provide a

basis for charting waste reduction trends over time; and

(v) appropriate employee training programs to assure proper

implementation of the economically practicable and technically feasible

waste reduction alternatives identified pursuant to paragraph b of this

subdivision.

d. An evaluation of the anticipated reduction, in tons or other

appropriate measurement, in the amount of hazardous wastes produced by

the generator as a result of the implementation of each of the

technically feasible and economically practicable waste reduction

options identified pursuant to paragraph b of this subdivision.

e. An evaluation of the extent, if any, to which the implementation of

each of the technically feasible and economically practicable waste

reduction options identified pursuant to paragraph b of this subdivision

may result in the transference of hazardous wastes into any other

environmental media and the environmental benefits, if any, of the waste

reduction option resulting in such transference.

5. The hazardous waste reduction plan required pursuant to this

section shall be updated at least biennially to reflect changes in the

types and amounts of hazardous wastes produced by the generator. In

preparing such update, the generator shall evaluate or reevaluate the

technical feasibility and economic practicability of waste reduction

alternatives as required pursuant to subdivision four of this section

for each such waste, and, if appropriate, shall revise the schedule for

implementing technically feasible and economically practicable waste

reduction alternatives; provided, that no evaluation or reevaluation

shall be required for such wastes no longer produced by the generator.

Such update shall provide continuity with previously prepared plans.

6. As a part of its hazardous waste generator report required pursuant

to subdivision six of section 27-0907 of this title, each generator

required to prepare a hazardous waste reduction plan pursuant to this

section shall submit to the department an annual status report

describing such generator's progress in achieving its time schedule for

implementing technically feasible and economically practicable waste

reduction alternatives, pursuant to paragraph c of subdivision four of

this section. If such generator does not implement a waste reduction

technology, process or operational change identified in such time

schedule, the annual status report shall identify the reason such

activity was not implemented and include a reasonable revised time

schedule for implementing such waste reduction alternative. If a

generator determines that any method of waste reduction chosen and

implemented is not achieving the degree of waste reduction anticipated,

notwithstanding commitments made in the plan or biennial update, the

generator may choose and implement another waste reduction alternative

more likely to achieve waste reduction. The generator shall explain such

action in the annual status report and account for such action in the

biennial updates pursuant to paragraphs c, d and e of subdivision four

of this section.

7. On or before January first, nineteen hundred ninety-one, the

department shall prepare and distribute a guidance manual to assist

generators in complying with the requirements of this section.

8. The department shall review each plan submitted pursuant to this

section according to the schedule provided hereafter. The submission of

such plan shall not be considered a permit application within

subdivision four of section 70-0105 of this chapter and shall not be

deemed to be a license application within subdivision four of section

one hundred two of the state administrative procedure act.

a. After July first, nineteen hundred ninety-one, the department shall

review and may reject, in accordance with the standards set forth in

subdivision nine of this section, those portions of such plan which

address hazardous wastes which are managed in a land disposal facility.

b. After July first, nineteen hundred ninety-three, the department

shall review and may reject, in accordance with the standards set forth

in subdivision nine of this section, those portions of such plan which

address hazardous wastes which are managed through treatment, including

wastes managed through thermal destruction or wastes burned as fuel for

the purpose of recovering usable energy; and

c. On or after July first, nineteen hundred ninety-five, the

department shall review and may reject, in accordance with the standards

set forth in subdivision nine of this section, all plans submitted by a

generator utilizing recovery, reuse or recycling, except closed loop

recycling directly back into the production process, as management

methods.

d. Notwithstanding any other provision of law the department shall not

be authorized to reject any plan or biennial update for which a notice

of deficiency pursuant to paragraph a of subdivision ten of this section

has not been provided to the generator within twelve months of the date

such plan or biennial update was submitted.

9. The review of hazardous waste reduction plans conducted by the

department pursuant to the schedule set forth in subdivision eight of

this section shall be subject to the following standards. The department

may reject any plan or biennial update thereof which:

a. fails to contain all the components required pursuant to

subdivision four of this section;

b. fails to apply generally accepted engineering, scientific or

economic principles and practices;

c. accomplishes waste reduction by transference to other environmental

media without an environmental benefit from such transference;

d. is inconsistent with the preferred hazardous waste management

practices hierarchy set forth in section 27-0105 of this article;

e. involves conduct which is prohibited by any applicable law or

regulation;

f. fails to provide a basis for charting waste reduction trends over

time;

g. beginning with the submission of the first biennial update, fails

to demonstrate reasonable progress in implementing those technically

feasible and economically practicable waste reduction alternatives

chosen by the generator according to the time schedule developed

pursuant to paragraph c of subdivision four of this section; or

h. beginning with the submission of the first biennial update, fails

to demonstrate reasonable progress in waste reduction employing the

methods of waste reduction and calculation provided in the plan, or as

modified in the annual report, or fails to reevaluate the technically

feasible and economically practicable waste reduction alternatives as

required pursuant to subdivision five of this section.

10. a. In proposing to reject any plan or biennial update thereof, the

department shall provide to the generator a notice detailing the

specific deficiencies the department has identified consistent with the

standards set forth in subdivision nine of this section.

b. Upon receipt of such notice, the generator shall have up to sixty

days to prepare a rebuttal or to modify the plan or biennial update to

address the deficiencies identified in the notice and to submit such

rebuttal or modified plan or update to the department.

c. If the department determines that the plan or update should not be

rejected, it shall notify the generator within thirty days of submittal

of a rebuttal or modified plan or update. If the department determines

that the rebuttal or modified plan or update has not adequately

addressed the specific deficiencies identified in the notice, or if the

rebuttal or modified plan or update is not submitted within the time

period specified in paragraph b of this subdivision, the department in

its discretion may require further modifications, consistent with the

specific deficiencies identified in the notice, within a time to be

determined by the department, or make a determination to reject such

plan or update. Any determination to require further modifications shall

be made and provided to the generator within thirty days of submittal of

a rebuttal or modified plan or update.

d. Immediately upon making a determination to reject a plan or

biennial update the department shall provide to the generator a notice

of final rejection. Such notice of final rejection shall detail the

specific deficiencies consistent with the standards set forth in

subdivision nine of this section.

e. Within fifteen days of the date of a notice of final rejection from

the department pursuant to this subdivision, a generator may request a

hearing pursuant to article three of the state administrative procedure

act. The department shall notify the generator of a date and place for a

hearing, to be commenced not later than sixty days from the date of such

notification, unless an extension of time has been agreed to pursuant to

paragraph j of this subdivision.

f. The department may not require any modification to the plan or

biennial update or raise any issue at hearing not identified in the

notice of final rejection provided pursuant to paragraph d of this

subdivision.

g. The certification prohibition in subdivision eleven of this section

shall not be effective until a determination is made by the department

after hearing, or until time to request such hearing has expired.

h. Any final determination of the department is reviewable pursuant to

article seventy-eight of the civil practice law and rules.

i. Such review shall be commenced within the time limits set forth in

section two hundred seventeen of the civil practice law and rules.

j. Any time period specified in this subdivision may be extended in

writing by mutual consent of the generator and the department.

11. Any generator who has submitted a hazardous waste reduction plan

according to the time schedule set forth in subdivision three of this

section, which plan has not been rejected by the department, is

authorized to make the certifications required under sections 27-0907

and 27-0913 of this title; provided, however, that no such generator

shall make such certifications if such plan has been rejected by the

department. These restrictions shall not apply to hazardous waste

generated prior to the date the plan was rejected.

12. Information required to be provided to the department under this

section shall be subject to the provisions of section 27-0919 of this

title.

13. On or before January first, nineteen hundred ninety-three, the

department shall prepare and present to the governor and the legislature

a report analyzing the desirability of requiring waste reduction

pursuant to this section on the part of generators of greater than

fifteen tons and less than twenty-five tons of hazardous waste per

calendar year. Such report shall include the number of generators in

this category, the amount of wastes produced by such generators, the

environmental benefit likely to be achieved, an evaluation of the

potential economic impact on industry and a description of the

additional resources that the department would require to analyze and

approve waste reduction plans submitted by this group of generators.

14. The department shall not impose planning and reduction

requirements other than those authorized pursuant to this section for

those hazardous wastes which are managed in a land disposal facility,

managed through treatment, or managed through recovery, reuse or

recycling and which are subject to the requirements of this section.

Provided however, nothing herein shall be construed to limit the

department's authority contained elsewhere in this chapter to require

planning and reductions in emissions, discharges or other releases.