§ 27-1105 — Siting industrial hazardous waste facilities

§ 27-1105. Siting industrial hazardous waste facilities.\n 1. After the publication of siting criteria pursuant to subdivision\none of section 27-1103 of this title, no person may commence\nconstruction or operation of the following industrial hazardous waste\ntreatment, storage and disposal facilities, hereinafter referred to as\n"facility", without having received a certificate of environmental\nsafety and public necessity from the facility siting board as\nhereinafter provided: (a) any new off-site facility;\n (b) any new commercial facility, wherever situated;\n (c) any new incineration facility, wherever situated;\n (d) any new land disposal facility, wherever situated; and\n (e) any expansion, wherever situated, of the aggregate land disposal\ncapacity of an existing land disposal facility.\n 2. Notwithstanding the provisions of subdivision one of this section,\nthe following industrial hazardous waste treatment, storage and disposal\nfacilities shall not be subject to the provisions of this title:\n (a) A facility that does not require permits pursuant to title nine of\nthis article;\n (b) A land disposal facility located at the site of an existing land\ndisposal facility where both the existing facility is or was and the\nproposed facility will be used solely for the disposal of\nnon-incinerable residues from the on-site thermal destruction or\nchemical or aqueous treatment of wastes generated at the site of such\nfacilities;\n (c) A facility that has been determined by the department to have no\nsignificant environmental impact pursuant to article eight of this\nchapter; and\n (d) Additional facilities, other than land disposal facilities, to be\nlocated at the site of an existing facility, the operation of which will\nbe substantially similar to that of the existing facility with respect\nto the mode of waste management and the type and quantity of hazardous\nwaste being managed.\n 3. To obtain the certificate of environmental safety and public\nnecessity required pursuant to subdivision one of this section, the\nfollowing procedures shall be followed:\n (a) An application must be submitted to the department in the form\nrequired pursuant to subdivisions one and three of section 27-1103 of\nthis title.\n (b) On or before fifteen calendar days after the receipt of such\napplication, the department shall mail written notice to the applicant\nwhether or not the application is complete. If the application is not\ncomplete, the provisions of paragraphs (c) and (d) of subdivision one of\nsection 70-0109 of this chapter shall be applicable. If, or when, the\napplication is complete, the department shall, concurrent with\nnotification to the applicant, send the application and written notice\nto the office of the governor requesting that a facility siting board be\nconstituted consistent with this subdivision.\n (c) Immediately upon determining that an application is complete, the\ndepartment shall cause a notice of application to be published in the\nnext available environmental notice bulletin which shall be not later\nthan ten calendar days after the date of such notice and shall provide\nnotice to the chief executive officer of each municipality in which the\nproposed project is located, and may direct the applicant to provide\nsuch reasonable notice and opportunity for comment to the public as the\ndepartment deems appropriate. Such notice shall also be given to all\nproperty owners of record within three hundred feet of the subject\nfacility. In addition, notice shall be published in at least two\nnewspapers having a general circulation in the area in which the\nproposed activity is located, and in contiguous areas potentially\naffected by the proposed action.\n (d) On or before fifteen calendar days after the receipt of such\nnotification the governor shall constitute a facility siting board to be\ncomposed of the commissioners of transportation, environmental\nconservation, health and commerce, the secretary of state and three ad\nhoc members appointed by the governor, two of whom must be residents of\nthe county in which the facility is primarily proposed to be located.\nThe three ad hoc members shall be employees of the state for the\npurposes of section seventeen of the public officers law. Each of the\nthree ad hoc members shall receive the sum of two hundred dollars for\neach day in which he is actually engaged in the performance of his\nduties herein plus actual and necessary expenses incurred by him in the\nperformance of such duties. The terms of the ad hoc members shall\ncontinue until a final determination has been made in the particular\nproceeding for which they were appointed. Each ex officio member of the\nboard may by written instrument filed with the board designate an\nemployee or officer of his department to act on his behalf relating to\nany or all business of the board. Five of the eight persons on the board\nshall constitute a quorum for the transaction of any business of the\nboard, and the decision of five members of the board shall constitute\naction of the board. In addition to the requirements of the public\nofficers law, no person shall be eligible to be an appointee of the\ngovernor to the board who holds another state or local office. The\ngovernor shall appoint the chairman of the board and the commissioner of\nenvironmental conservation shall make staff available to support the\nboard in carrying out its responsibilities.\n (e) The commissioner of the department of environmental conservation\nshall appoint a hearing officer who shall conduct an adjudicatory public\nhearing upon the application. Such hearing shall commence on or before\nsixty calendar days after the facility siting board is constituted. Such\nhearing shall be preceded by public notice, in the same form and manner\nas provided in paragraph (c) of this subdivision, published not less\nthan thirty days prior to such hearing. The members of the board may at\ntheir option participate in the adjudicatory hearing. Such participation\nmay include, but is not limited to, examination of witnesses and\nrequesting the production of documents or witnesses.\n (f) The board shall render a decision based upon the record either\ngranting the application, denying it, or granting it upon such terms,\nconditions, limitations, or modifications thereof as the board may deem\nappropriate. The board shall deny an application to construct or operate\na facility if residential areas and contiguous populations will be\nendangered, if it otherwise does not conform to the siting criteria\nestablished for such facility pursuant to section 27-1103 of this title\nor, upon final adoption of the statewide hazardous waste facility siting\nplan established pursuant to section 27-1102 of this title, if it is not\nconsistent with such plan or if the need for such facility is not\nidentified in such plan and the board finds that the facility is not\notherwise necessary or in the public interest.\n (g) The board shall make the final decision on an application for a\ncertificate of environmental safety pursuant to this title, upon the\nrecord made before the hearing officer, after receiving briefs from the\nparties to the hearing and exceptions to the recommended decision of\nsuch hearing officer and after hearing such oral argument as the board\nshall determine to be necessary. The chairman of the facility siting\nboard shall mail its decision to the applicant, to the department, and\nto all parties to the hearing on or before sixty calendar days after\nreceipt by the board of a complete record, as that term is defined in\nparagraphs (a) through (e) of subdivision one of section 302 of the\nstate administrative procedure act.\n (h) The provisions of article 70 of this chapter shall apply to\napplications pursuant to this title, to the extent such provisions are\nnot inconsistent herewith.\n