N.Y. Environmental Conservation Law § 27-0917: Financial requirements for hazardous waste facilities

§ 27-0917. Financial requirements for hazardous waste facilities.

1. Within eighteen months after the effective date of this section,

the commissioner shall promulgate regulations for hazardous waste

facilities identifying financial requirements to be included as

conditions in hazardous waste facility permits for the remediation of

failures during operation and after facility closure, for facility

closure, and for pre-closure and post-closure facility monitoring and

maintenance. In promulgating regulations pursuant to this subdivision,

the department shall identify those regulations which vary from

applicable federal rules and regulations. Such regulations shall:

(a) Reflect due consideration of relevant federal requirements and

except where necessary to serve the public interest or where

inconsistent with the purposes of this section, conform to regulations

promulgated under the Resource Conservation and Recovery Act of 1976 and

the Comprehensive Environmental Response Compensation and Liability Act

of 1980 but shall in no case be less stringent than such federal

requirements and regulations.

(b) Reflect due consideration of the sizes and locations of affected

facilities, the natures and volumes of hazardous waste involved, the

types of facilities (treatment, storage or disposal) and the degrees and

durations of risk to human health or the environment.

(c) Provide for the establishment, administration, terms and

conditions of the following methods or instruments to be used as

alternatives or in combinations, in order to achieve non-duplicative

coverage of the financial assurance requirements mandated by this

section:

(i) Trust funds.

(ii) Surety or performance bonds.

(iii) Letters of credit.

(iv) Liability insurance or annuities.

(v) Guarantees provided by corporate or other legal or financial

affiliates of the facility owner or operator.

(d) Establish:

(i) Exemptions for identified classes of facilities engaged in

treatment or storage of hazardous waste for which financial assurance

requirements for closure and post-closure monitoring and maintenance are

unnecessary or inappropriate.

(ii) Financial criteria for the purpose of determining the financial

condition of permit applicants and permit holders. Such financial

criteria shall be established for the purpose of determining the

relative financial viability of permit holders and applicants. The

department shall establish standards of minimum financial viability

based on the criteria. Any permit holder or applicant meeting the

minimum financial viability standard may select at its own discretion

which of the methods or instruments described in paragraph (c) of this

subdivision will be used to meet the requirements of subdivision five of

this section. With respect to permit holders or applicants which do not

meet the minimum financial viability standards, the commissioner may in

his discretion determine which method or instrument or combination

thereof shall be used to meet the requirements of subdivision five of

this section. Any decision by the commissioner with respect to

determining which methods or instruments are to be used shall be

accompanied by a finding regarding the public interest and shall set

forth the reasons therefor.

(iii) Requirements for the initial and periodic submission by permit

holders and applicants to the department of up to date financial data

based on the test criteria established pursuant to subparagraph (ii) of

this paragraph.

(iv) The duration of such financial requirements.

(v) The method for phasing-in financial requirements for existing

facilities.

2. The commissioner shall undertake an analysis of the use of a

financial test as an alternative to the requirements for use of the

financial assurances methods or instruments provided for in paragraph

(c) of subdivision one of this section. In his analysis the commissioner

shall consider relevant federal rules and regulations and their

rationale, the use of such a test by other states, and the impact on

affected business and industry as well as the public health and safety

and any other factors he may consider relevant.

In undertaking such analysis, the commissioner shall conduct at least

one public hearing and shall make a finding as to whether or not the

public interest warrants the use of a financial test for the purposes

stated herein and shall report such finding to the legislature within

twelve months of the effective date of this section.

In the event the commissioner finds that the public interest warrants

use of a financial test, the commissioner shall within eighteen months

after the effective date of this section, promulgate regulations making

provisions for use of a financial test. Any such regulations shall give

due consideration to relevant federal requirements and, except where

necessary to serve the public interest or where inconsistent with the

purposes of this section, shall conform to relevant federal regulations

but shall in no case be less stringent.

3. Any owner or operator of an existing or proposed hazardous waste

facility may request a modification from the department of any of the

financial requirements established pursuant to subdivision one of this

section. A modification may be granted in the discretion of the

department if such financial requirements are found to be unnecessary or

inappropriate, consistent with public interest and the purposes of this

section and supported by written findings setting forth the reasons for

the modification. Such modification request shall be considered a

request for modification of the permit for the facility pursuant to

article seventy of this chapter. In no case shall a modification granted

pursuant to this subdivision eliminate or reduce the minimum

requirements established in subdivision five of this section.

4. In addition to the financial requirements established pursuant to

subdivision one of this section, permits for the construction and

operation of certain categories of hazardous waste facilities, as those

categories are defined in regulations, may, if the commissioner

determines that adequate protection of the public so requires, include

conditions related to any or all of the following, including

responsibility for the costs thereof:

(a) On-site environmental monitors whose function shall be to monitor

compliance with permit conditions. The commissioner may promulgate

regulations regarding the use of such monitors.

(b) Site safety plans whereby the permittee shall establish, with the

cooperation of local government officials, a community and project

safety plan, including but not limited to an accident response based on

a worst-case condition, on-site and off-site, a personnel training

program, provisions for coordination with local emergency services and

regular training exercises. Any such plan shall be subject to the

approval of the department.

(c) Long term management plans, the purpose of which shall be to

insure that the permittee devotes adequate resources to the examination

and implementation of technologies for hazardous waste management which

provide the maximum degree of environmental and public health protection

practicable. The department shall, to the extent reasonably possible,

make available any information or data appropriate and consistent with

the purposes of this paragraph. Such a plan shall include but not be

limited to the following:

(i) An overview of existing technologies being employed at the

facility.

(ii) An analysis of alternate technologies available for the treatment

or disposal of waste streams currently being managed or those which the

applicant/permittee anticipates managing.

(iii) An assessment of marketing considerations related to the

employment of alternate technologies.

(iv) An evaluation of the feasibility of financing modifications to

the existing facility in order to employ the alternate technologies.

(v) A statement from the applicant/permittee regarding its intent to

implement the alternate technologies, where appropriate, and a detailed

discussion of the measures the applicant/permittee will take to

implement the same.

5. Any permit issued by the department to construct or operate a

hazardous waste facility shall, except pursuant to regulations

promulgated pursuant to subdivision two of this section, require the

owner or operator, or an affiliate thereof, to secure, at a minimum, one

of the instruments of financial assurance provided for in paragraph (c)

of subdivision one of this section. Such instruments shall be designed

to insure proper facility closure, based on the estimates approved

pursuant to section 27-0918 of this chapter, and coverage of personal

injury and property damage to third parties caused by the operation of

such facility. Such instruments shall from time to time be reviewed and

updated, pursuant to regulations promulgated by the department, to

insure their continued adequacy for the purposes of this section. The

requirements of this subdivision shall not apply to permits granted to

the state or to any facilities exempted pursuant to subparagraph (i) of

paragraph (d) of subdivision one of this section.

6. If a permit holder or applicant relies upon the financial condition

of a corporate parent or affiliate to meet any financial test or

criteria established pursuant to this title or regulations promulgated

thereunder, the parent or affiliate shall guarantee the performance of

all financial assurance requirements imposed pursuant to this title,

including the costs of any closure and post-closure plan.

7. Within six months after the effective date of regulations

promulgated pursuant to subdivision one of this section, owners or

operators of all affected existing facilities shall make application for

a permit or permit modification to achieve compliance with such

regulations, and immediately upon such effective date no application for

a permit for any proposed affected facility shall be complete for the

purposes of article seventy of this chapter without complying with such

regulations. Receipt of such applications by the department shall be

published in the next issue of the environmental notice bulletin

following receipt.

8. In the case of permits for the construction and operation of

commercial hazardous waste facilities which utilize secure landburial

facilities as a primary disposal technique, such permits shall include

the conditions enumerated in subdivision four of this section. In

addition, the department shall establish qualifications for on-site

environmental monitors to be stationed at such facilities. In order to

enhance the ability of the department to monitor all aspects of a secure

landfill operator the qualifications shall include a requirement that

such monitors be expert in at least one of the areas of geology,

chemistry or engineering. The department shall ensure that the monitors

assigned to a particular facility at any one time shall, to the extent

possible, have different areas of expertise as among themselves. In

addition the department shall establish a rotation of monitors, when

more than one such facility exists, to ensure no individual monitor is

assigned to a particular facility for more than six months in any single

year.

9. The commissioner shall promulgate regulations establishing

requirements of financial responsibility to assure the completion of

corrective action required pursuant to subdivision two of section

27-0911 or subdivision one of section 27-0913 of this title.