N.Y. Environmental Conservation Law § 27-1105: Siting industrial hazardous waste facilities

§ 27-1105. Siting industrial hazardous waste facilities.

1. After the publication of siting criteria pursuant to subdivision

one of section 27-1103 of this title, no person may commence

construction or operation of the following industrial hazardous waste

treatment, storage and disposal facilities, hereinafter referred to as

"facility", without having received a certificate of environmental

safety and public necessity from the facility siting board as

hereinafter provided: (a) any new off-site facility;

(b) any new commercial facility, wherever situated;

(c) any new incineration facility, wherever situated;

(d) any new land disposal facility, wherever situated; and

(e) any expansion, wherever situated, of the aggregate land disposal

capacity of an existing land disposal facility.

2. Notwithstanding the provisions of subdivision one of this section,

the following industrial hazardous waste treatment, storage and disposal

facilities shall not be subject to the provisions of this title:

(a) A facility that does not require permits pursuant to title nine of

this article;

(b) A land disposal facility located at the site of an existing land

disposal facility where both the existing facility is or was and the

proposed facility will be used solely for the disposal of

non-incinerable residues from the on-site thermal destruction or

chemical or aqueous treatment of wastes generated at the site of such

facilities;

(c) A facility that has been determined by the department to have no

significant environmental impact pursuant to article eight of this

chapter; and

(d) Additional facilities, other than land disposal facilities, to be

located at the site of an existing facility, the operation of which will

be substantially similar to that of the existing facility with respect

to the mode of waste management and the type and quantity of hazardous

waste being managed.

3. To obtain the certificate of environmental safety and public

necessity required pursuant to subdivision one of this section, the

following procedures shall be followed:

(a) An application must be submitted to the department in the form

required pursuant to subdivisions one and three of section 27-1103 of

this title.

(b) On or before fifteen calendar days after the receipt of such

application, the department shall mail written notice to the applicant

whether or not the application is complete. If the application is not

complete, the provisions of paragraphs (c) and (d) of subdivision one of

section 70-0109 of this chapter shall be applicable. If, or when, the

application is complete, the department shall, concurrent with

notification to the applicant, send the application and written notice

to the office of the governor requesting that a facility siting board be

constituted consistent with this subdivision.

(c) Immediately upon determining that an application is complete, the

department shall cause a notice of application to be published in the

next available environmental notice bulletin which shall be not later

than ten calendar days after the date of such notice and shall provide

notice to the chief executive officer of each municipality in which the

proposed project is located, and may direct the applicant to provide

such reasonable notice and opportunity for comment to the public as the

department deems appropriate. Such notice shall also be given to all

property owners of record within three hundred feet of the subject

facility. In addition, notice shall be published in at least two

newspapers having a general circulation in the area in which the

proposed activity is located, and in contiguous areas potentially

affected by the proposed action.

(d) On or before fifteen calendar days after the receipt of such

notification the governor shall constitute a facility siting board to be

composed of the commissioners of transportation, environmental

conservation, health and commerce, the secretary of state and three ad

hoc members appointed by the governor, two of whom must be residents of

the county in which the facility is primarily proposed to be located.

The three ad hoc members shall be employees of the state for the

purposes of section seventeen of the public officers law. Each of the

three ad hoc members shall receive the sum of two hundred dollars for

each day in which he is actually engaged in the performance of his

duties herein plus actual and necessary expenses incurred by him in the

performance of such duties. The terms of the ad hoc members shall

continue until a final determination has been made in the particular

proceeding for which they were appointed. Each ex officio member of the

board may by written instrument filed with the board designate an

employee or officer of his department to act on his behalf relating to

any or all business of the board. Five of the eight persons on the board

shall constitute a quorum for the transaction of any business of the

board, and the decision of five members of the board shall constitute

action of the board. In addition to the requirements of the public

officers law, no person shall be eligible to be an appointee of the

governor to the board who holds another state or local office. The

governor shall appoint the chairman of the board and the commissioner of

environmental conservation shall make staff available to support the

board in carrying out its responsibilities.

(e) The commissioner of the department of environmental conservation

shall appoint a hearing officer who shall conduct an adjudicatory public

hearing upon the application. Such hearing shall commence on or before

sixty calendar days after the facility siting board is constituted. Such

hearing shall be preceded by public notice, in the same form and manner

as provided in paragraph (c) of this subdivision, published not less

than thirty days prior to such hearing. The members of the board may at

their option participate in the adjudicatory hearing. Such participation

may include, but is not limited to, examination of witnesses and

requesting the production of documents or witnesses.

(f) The board shall render a decision based upon the record either

granting the application, denying it, or granting it upon such terms,

conditions, limitations, or modifications thereof as the board may deem

appropriate. The board shall deny an application to construct or operate

a facility if residential areas and contiguous populations will be

endangered, if it otherwise does not conform to the siting criteria

established for such facility pursuant to section 27-1103 of this title

or, upon final adoption of the statewide hazardous waste facility siting

plan established pursuant to section 27-1102 of this title, if it is not

consistent with such plan or if the need for such facility is not

identified in such plan and the board finds that the facility is not

otherwise necessary or in the public interest.

(g) The board shall make the final decision on an application for a

certificate of environmental safety pursuant to this title, upon the

record made before the hearing officer, after receiving briefs from the

parties to the hearing and exceptions to the recommended decision of

such hearing officer and after hearing such oral argument as the board

shall determine to be necessary. The chairman of the facility siting

board shall mail its decision to the applicant, to the department, and

to all parties to the hearing on or before sixty calendar days after

receipt by the board of a complete record, as that term is defined in

paragraphs (a) through (e) of subdivision one of section 302 of the

state administrative procedure act.

(h) The provisions of article 70 of this chapter shall apply to

applications pursuant to this title, to the extent such provisions are

not inconsistent herewith.