S T A T E O F N E W Y O R K
________________________________________________________________________
2650
2009-2010 Regular Sessions
I N A S S E M B L Y
January 21, 2009
___________
Introduced by M. of A. CLARK -- read once and referred to the Committee
on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to the
siting of solid waste management facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a) and (b) of subdivision 1 of section 27-0107
of the environmental conservation law, paragraph (a) as amended by chap-
ter 88 of the laws of 1996 and paragraph (b) as added by chapter 70 of
the laws of 1988, are amended to read as follows:
(a) A planning unit [may undertake and complete a timely process lead-
ing to] SHALL DEVELOP a local solid waste management plan for such unit
for at least a ten-year period. For purposes of this section and section
27-0109 of this [article] TITLE, "planning unit" shall mean a county,
two or more counties acting jointly, a local government agency or
authority established pursuant to state law for the purposes of managing
solid waste, any city located in the county of Nassau, or two or more
other municipalities which the department determines to be capable of
implementing a regional solid waste management program.
(b) The local solid waste management plan shall:
(i) characterize the solid waste stream to be managed in the planning
period. THIS CHARACTERIZATION SHALL INCLUDE PROJECTED CHANGES IN WASTE
VOLUME OVER THE TEN-YEAR PLANNING PERIOD ATTRIBUTABLE TO CHANGING POPU-
LATIONS, INCREASED REGIONAL RECYCLING, REGIONAL WASTE REDUCTION EFFORTS
AND OTHER FACTORS;
(ii) assess [existing and alternate proposed solid waste management
programs and facilities] DISPOSAL CAPACITY AVAILABLE IN EXISTING FACILI-
TIES WITHIN THE PLANNING UNIT OR CAPACITY AVAILABLE TO THE PLANNING UNIT
THROUGH CONTRACTUAL ARRANGEMENTS, AND FOR EACH YEAR IN THE TEN-YEAR
PLANNING PERIOD, IDENTIFY PROJECTED SURPLUSES OR DEFICIENCIES IN WASTE
DISPOSAL CAPACITY AVAILABLE TO THE PLANNING UNIT;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05003-01-9
A. 2650 2
(iii) IDENTIFY AND ASSESS SPECIFIC OPTIONS FOR ADDRESSING PROJECTED
DEFICIENCIES IN DISPOSAL CAPACITY DURING THE TEN-YEAR PLANNING PERIOD,
INCLUDING RECYCLING, WASTE REDUCTION AND REUSE, COMPOSTING, AND RESOURCE
RECOVERY AND LAND DISPOSAL. THIS ASSESSMENT SHALL INCLUDE THE FEASIBIL-
ITY OF DEVELOPING ADDITIONAL WASTE MANAGEMENT AND DISPOSAL CAPACITY
WITHIN THE REGION AND THE ACCESSIBILITY OF WASTE MANAGEMENT AND DISPOSAL
CAPACITY OUTSIDE OF THE REGION, GIVING PRIORITY TO FACILITIES WITHIN NEW
YORK STATE. THIS ASSESSMENT SHALL ALSO INCLUDE THE ANNUAL COSTS OF
PROVIDING FOR ADEQUATE WASTE MANAGEMENT AND DISPOSAL CAPACITY, AND AN
ASSESSMENT OF POTENTIAL REVENUE FEE STRUCTURES TO MEET THOSE COSTS;
(IV) address to the maximum extent practicable the comments and views
expressed by concerned governmental, environmental, commercial and
industrial interests and the public on the waste reduction, recycling,
reuse and disposal alternatives;
[(iv)] (V) INCLUDE A PLAN AND TIMETABLE FOR EVALUATING, SELECTING AND
IMPLEMENTING MEASURES FOR ADDRESSING PROJECTED DEFICIENCIES IN DISPOSAL
CAPACITY;
(VI) identify the parties with responsibility to implement each
element of the plan and the steps which must be undertaken by each;
[(v) set forth a timetable for implementing the plan;
(vi)] (VII) describe the participation in the preparation of the plan
of each municipality which has chosen to participate in such prepara-
tion; and
[(vii)] (VIII) describe (A) measures undertaken by the municipalities
participating in the planning unit to secure participation of neighbor-
ing jurisdictions, (B) the limitations, if any, imposed by the proposed
plan on solid waste management alternatives available to such neighbor-
ing jurisdictions, and (C) alternatives which would be available if a
local solid waste management plan including such jurisdictions were
prepared. Specific written suggestions received from neighboring juris-
dictions shall be summarized and reflected in the plan.
S 2. The environmental conservation law is amended by adding a new
section 27-0709 to read as follows:
S 27-0709. CRITERIA FOR SITING SOLID WASTE MANAGEMENT FACILITIES.
1. ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NO PERSON SHALL
COMMENCE THE PREPARATION OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF, A
SOLID WASTE MANAGEMENT FACILITY IN THE STATE WITHOUT HAVING FIRST
OBTAINED A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NECES-
SITY FROM THE STATE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW BOARD.
2. THE COMMISSIONER SHALL, AFTER INVESTIGATION AND OPPORTUNITY FOR
PUBLIC COMMENT AND WITHIN SIX MONTHS FROM THE EFFECTIVE DATE OF THIS
SECTION, PUBLISH CRITERIA FOR SITING SOLID WASTE MANAGEMENT FACILITIES
UPON WHICH A DETERMINATION OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC
NECESSITY SHALL BE BASED. THE COMMISSIONER SHALL ALSO WITHIN SIX MONTHS
FROM THE EFFECTIVE DATE OF THIS SECTION PROMULGATE REGULATIONS PRESCRIB-
ING THE FORM AND CONTENT OF APPLICATIONS FOR A CERTIFICATE OF ENVIRON-
MENTAL COMPATIBILITY AND PUBLIC NECESSITY TO CONSTRUCT A SOLID WASTE
MANAGEMENT FACILITY.
3. THE CRITERIA ISSUED PURSUANT TO SUBDIVISION ONE OF THIS SECTION FOR
THE SITING OF SOLID WASTE MANAGEMENT FACILITIES SHALL INCLUDE:
(A) THE CONSISTENCY OF THE APPLICATION WITH THE PLAN ADOPTED PURSUANT
TO SECTION 27-0103 OF THIS ARTICLE;
(B) THE CONSISTENCY OF THE APPLICATION WITH ANY LOCALLY ADOPTED SOLID
WASTE MANAGEMENT PLAN, INCLUDING THE EXTENT TO WHICH A PROPOSED FACILITY
ADDRESSES DISPOSAL CAPACITY DEFICIENCIES IDENTIFIED IN SUCH PLANS;
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(C) THE EXTENT TO WHICH THOSE MUNICIPALITIES THAT WILL UTILIZE THE
PROPOSED FACILITY HAVE EVALUATED POSSIBLE WASTE MANAGEMENT SITES WITHIN
THEIR JURISDICTIONS;
(D) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACT CAUSED BY THE
FACILITY, INCLUDING SPECIFICATION OF THE PREDICTABLE ADVERSE EFFECTS ON
THE NATURAL ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, SCENIC,
HISTORIC, CULTURAL AND RECREATIONAL VALUE, WATER AND AIR QUALITY, WILD-
LIFE AND AN EVALUATION OF MEASURES TO MITIGATE ADVERSE EFFECTS;
(E) THE NATURE OF THE ENVIRONMENTAL BENEFITS LIKELY TO BE DERIVED FROM
SUCH FACILITY, INCLUDING THE RESULTANT DECREASE IN RELIANCE UPON EXIST-
ING SOLID WASTE DISPOSAL FACILITIES WHICH DO NOT COMPLY WITH APPLICABLE
LAWS AND REGULATIONS, THE DECREASE IN RELIANCE ON SOLID WASTE MANAGEMENT
CAPACITY OUTSIDE OF NEW YORK STATE, AND A REDUCTION IN FUEL CONSUMPTION
AND VEHICLE EMISSIONS RELATED TO LONG-DISTANCE TRANSPORTATION OF SOLID
WASTE; AND
(F) THE ECONOMIC BENEFITS LIKELY TO BE DERIVED FROM SUCH FACILITY,
INCLUDING BUT NOT LIMITED TO A REDUCTION IN EXISTING COSTS FOR THE
DISPOSAL OF SOLID WASTES, IMPROVEMENT TO THE STATE'S ABILITY TO RETAIN
AND ATTRACT BUSINESS AND INDUSTRY DUE TO PREDICTABLE AND STABLE SOLID
WASTE DISPOSAL COSTS AND AVAILABILITY, MAINTENANCE OF THE COMPETITIVE-
NESS OF THE STATE'S SOLID WASTE INDUSTRY AND ANY ECONOMIC BENEFITS WHICH
MAY ACCRUE TO THE MUNICIPALITY IN WHICH THE FACILITY IS TO BE LOCATED.
S 3. Section 27-0711 of the environmental conservation law, as added
by chapter 399 of the laws of 1973 and renumbered by chapter 425 of the
laws of 1977, is amended to read as follows:
S 27-0711. Local laws, ordinances and regulations.
Any local laws, ordinances or regulations of any governing body of a
county, city, town or village which are not inconsistent with this title
or with any rule or regulation which shall be promulgated pursuant to
this title shall not be superseded by it, and nothing in this title or
in any rule or regulation which shall be promulgated pursuant to this
title shall preclude the right of any governing body of a county, city,
town or village to adopt local laws, ordinances or regulations which are
not inconsistent with this title or with any rule or regulation which
shall be promulgated pursuant to this title provided, however, THAT NO
MUNICIPALITY MAY, EXCEPT AS EXPRESSLY AUTHORIZED BY THE BOARD ESTAB-
LISHED PURSUANT TO SECTION 27-0713 OF THIS TITLE, REQUIRE ANY APPROVAL,
CONSENT, PERMIT, CERTIFICATE OR OTHER CONDITION INCLUDING CONFORMITY
WITH LOCAL ZONING OR LAND USE LAWS AND ORDINANCES REGARDING THE OPERA-
TION OF A SOLID WASTE MANAGEMENT FACILITY WITH RESPECT TO WHICH A
CERTIFICATE HAS BEEN GRANTED IN ACCORDANCE WITH SECTION 27-0713 OF THIS
TITLE, AND FURTHER PROVIDED, HOWEVER, that the exercise of such right by
a county shall relate only to the area thereof outside any city, village
or area of any town outside the village or villages therein during such
time as such city, village or town has local laws, ordinances or regu-
lations consistent with this title or with any rule or regulation which
shall be promulgated pursuant to this title. Any local laws, ordinances
or regulations of a county, city, town or village which comply with at
least the minimum applicable requirements set forth in any rule or regu-
lation promulgated pursuant to this title shall be deemed consistent
with this title or with any such rule or regulation, EXCEPT AS PROVIDED
HEREIN.
S 4. The environmental conservation law is amended by adding two new
sections 27-0713 and 27-0714 to read as follows:
S 27-0713. SITING SOLID WASTE MANAGEMENT FACILITIES.
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1. THERE IS HEREBY ESTABLISHED A SOLID WASTE MANAGEMENT FACILITY SITE
REVIEW BOARD TO BE COMPOSED OF THE COMMISSIONERS OF ECONOMIC DEVELOP-
MENT, ENVIRONMENTAL CONSERVATION, HEALTH, AND TRANSPORTATION, THE SECRE-
TARY OF STATE, AND FOUR AD HOC MEMBERS APPOINTED BY THE GOVERNOR, TWO OF
WHOM MUST BE RESIDENTS OF THE PLANNING UNIT IN WHICH THE PROPOSED SOLID
WASTE MANAGEMENT FACILITY IS TO BE LOCATED. THE FOUR AD HOC MEMBERS
SHALL BE EMPLOYEES OF THE STATE FOR PURPOSES OF SECTION SEVENTEEN OF THE
PUBLIC OFFICERS LAW. THE TERM OF THE AD HOC MEMBERS SHALL CONTINUE UNTIL
A FINAL DETERMINATION HAS BEEN MADE IN THE PARTICULAR PROCEEDING FOR
WHICH THEY WERE APPOINTED. FIVE OF THE 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 AVAILABLE TO THE BOARD DEPARTMENTAL STAFF IN
ORDER TO SUPPORT THE BOARD IN CARRYING OUT ITS RESPONSIBILITIES.
2. THE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW BOARD IS EMPOWERED
TO:
(A) ISSUE CERTIFICATES OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC
NECESSITY FOR SOLID WASTE MANAGEMENT FACILITIES. A CERTIFICATE FOR A
SOLID WASTE MANAGEMENT FACILITY MAY BE ISSUED ONLY PURSUANT TO THIS
ARTICLE; AND
(B) DEVELOP NON-BINDING ASSESSMENTS OF INCREASED PUBLIC EXPENDITURES
TO BE CAUSED BY SOLID WASTE MANAGEMENT FACILITIES, FACILITATE SETTLE-
MENTS ON PAYMENTS BY FACILITY OWNERS/OPERATORS TO OFFSET INCREASED
PUBLIC EXPENDITURES, AND TO CONVENE ARBITRATION PANELS FOR THE PURPOSE
OF ESTABLISHING FAIR AND EQUITABLE HOST COMMUNITY FEES PAYABLE TO
AFFECTED MUNICIPALITIES AND DISTRICTS.
3. AN APPLICANT FOR A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND
PUBLIC NECESSITY SHALL SUBMIT ITS APPLICATION TO THE COMMISSIONER OF THE
DEPARTMENT. UPON RECEIPT OF A COMPLETE APPLICATION, THE COMMISSIONER
SHALL CONVENE THE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW BOARD
ESTABLISHED BY THIS SECTION. SUCH APPLICATION SHALL BE SUBMITTED IN
ACCORDANCE WITH THE FOLLOWING PROCEDURE:
(A) ON OR BEFORE FIFTEEN CALENDAR DAYS AFTER THE RECEIPT OF SUCH
APPLICATION, THE DEPARTMENT SHALL MAIL WRITTEN NOTICE TO THE APPLICANT
AS TO WHETHER OR NOT SUCH APPLICATION IS COMPLETE. IF THE APPLICATION IS
NOT COMPLETE, THE PROVISIONS 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, SO NOTIFY THE
COMMISSIONER SO THAT HE MAY CONVENE THE SOLID WASTE MANAGEMENT FACILITY
SITE REVIEW BOARD.
(B) IMMEDIATELY UPON DETERMINING THAT AN APPLICATION IS COMPLETE, THE
DEPARTMENT SHALL CAUSE A NOTICE TO BE PUBLISHED IN THE NEXT AVAILABLE
ENVIRONMENTAL NOTICE BULLETIN WHICH SHALL NOT BE 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
TO BE LOCATED, AND SHALL DIRECT THE APPLICANT TO PROVIDE SUCH REASONABLE
NOTICE TO THE PUBLIC AS THE DEPARTMENT DEEMS APPROPRIATE. SUCH NOTICE
SHALL, AT A MINIMUM, INCLUDE PUBLICATION IN AT LEAST TWO NEWSPAPERS
HAVING A GENERAL CIRCULATION IN THE VICINITY IN WHICH THE PROPOSED
FACILITY IS PROPOSED TO BE LOCATED.
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(C) ON OR BEFORE FIFTEEN CALENDAR DAYS AFTER THE DEPARTMENT DETERMINES
THAT THE APPLICATION IS COMPLETE THE COMMISSIONER SHALL CONVENE THE
SOLID WASTE MANAGEMENT FACILITY SITE REVIEW BOARD.
(D) THE COMMISSIONER SHALL APPOINT A HEARING OFFICER WHO SHALL CONDUCT
AN ADJUDICATORY PUBLIC HEARING UPON THE APPLICATION. SUCH HEARING SHALL
COMMENCE AFTER FORTY CALENDAR DAYS BUT BEFORE SIXTY CALENDAR DAYS AFTER
THE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW BOARD IS CONVENED.
(E) MUNICIPALITIES IN WHICH THE PROPOSED FACILITY WOULD BE LOCATED
SHALL HAVE FORTY DAYS AFTER THE CONVENING OF THE SITE REVIEW BOARD TO
(I) CONCUR WITH THE SITE IDENTIFIED BY THE PERMIT APPLICANT OR (II)
OBJECT TO THE ESTABLISHMENT OF A FACILITY OF THE KIND DESCRIBED BY THE
APPLICANT BECAUSE ITS APPROVAL WOULD RESULT IN SUCH A CONCENTRATION OF
SOLID WASTE MANAGEMENT FACILITIES IN THE MUNICIPALITY OR IN THE AREA IN
PROXIMITY TO THE SITE SELECTED THAT THE NATURE AND CHARACTER OF THE
AREAS WITHIN THE MUNICIPALITY WOULD BE SUBSTANTIALLY ALTERED. IN THE
EVENT THE MUNICIPALITY OBJECTS TO ESTABLISHMENT OF A FACILITY IN THE
MUNICIPALITY BECAUSE TO DO SO WOULD RESULT IN SUCH A CONCENTRATION OF
WASTE MANAGEMENT FACILITIES THAT THE NATURE AND CHARACTER OF AREAS WITH-
IN THE MUNICIPALITY WOULD BE SUBSTANTIALLY ALTERED, THE SITE REVIEW
BOARD SHALL MEET WITHIN FIFTEEN DAYS OF RECEIPT OF SUCH AN OBJECTION TO
RESOLVE THE ISSUE. IN REVIEWING ANY SUCH OBJECTION, THE BOARD SHALL
CONSIDER THE NEED FOR SUCH A FACILITY IN THE MUNICIPALITY AND IN THE
SOLID WASTE PLANNING REGION IN WHICH THE MUNICIPALITY IS LOCATED AND THE
EXISTING CONCENTRATION OF SUCH FACILITIES IN THE MUNICIPALITY OR IN THE
AREA IN PROXIMITY TO THE SITE PROPOSED BY THE PERMIT APPLICANT. THE
SITE REVIEW BOARD SHALL SUSTAIN THE OBJECTION IF IT DETERMINES THAT THE
NATURE AND CHARACTER OF THE AREA IN WHICH THE FACILITY IS TO BE BASED
WOULD BE SUBSTANTIALLY ALTERED BECAUSE OF THE CONCENTRATION OF SOLID
WASTE MANAGEMENT FACILITIES RESULTING FROM THE ESTABLISHMENT OF THE
PROPOSED FACILITY. THE BOARD SHALL MAKE SUCH A DETERMINATION WITHIN
THIRTY DAYS OF THE HEARING.
(F) THE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW 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 DEEMS APPROPRIATE. THE BOARD SHALL
BASE ITS DECISION UPON WHETHER OR NOT THE PROPOSED FACILITY IS CONSIST-
ENT WITH THE STATE SOLID WASTE MANAGEMENT PLAN ADOPTED BY THE DEPARTMENT
PURSUANT TO SECTION 27-0103 OF THIS ARTICLE AND ANY LOCALLY ADOPTED
SOLID WASTE MANAGEMENT PLAN, WHETHER OR NOT SITING THE FACILITY IS
CONSISTENT WITH THE CRITERIA ESTABLISHED BY SECTION 27-0107 OF THIS
ARTICLE AND AS TO WHETHER OR NOT THERE EXISTS A NEED FOR THE PROPOSED
FACILITY.
(G) THE BOARD SHALL MAKE THE FINAL DETERMINATION ON AN APPLICATION
UPON THE RECORD MADE BEFORE THE HEARING OFFICER, AFTER RECEIVING BRIEFS
FROM THE PARTIES TO THE HEARING AND EXCEPTIONS TO THE RECOMMENDED DECI-
SION OF THE HEARING OFFICER AND AFTER HEARING SUCH ORAL ARGUMENTS AS THE
BOARD SHALL DETERMINE TO BE NECESSARY. THE CHAIRMAN OF THE 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 THREE HUNDRED TWO OF THE
STATE ADMINISTRATIVE PROCEDURE ACT, OR WITHIN SIXTY DAYS OF MAKING A
DETERMINATION ON AN OBJECTION ENTERED BY A MUNICIPALITY THAT ESTABLISH-
MENT OF THE PROPOSED FACILITY IN THE MUNICIPALITY WOULD RESULT IN SUCH A
CONCENTRATION OF SOLID WASTE MANAGEMENT FACILITIES THAT THE NATURE AND
A. 2650 6
CHARACTER OF AREAS WITHIN THE MUNICIPALITY WOULD BE SUBSTANTIALLY
ALTERED.
(H) THE PROVISIONS OF ARTICLE 70 OF THIS CHAPTER SHALL APPLY TO APPLI-
CATIONS PURSUANT TO THIS TITLE, TO THE EXTENT SUCH PROVISIONS ARE NOT
INCONSISTENT HEREWITH.
4. APPLICATIONS FOR A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND
PUBLIC NECESSITY SHALL BE ACCOMPANIED BY A FEE OF ONE HUNDRED THOUSAND
DOLLARS FOR A REQUEST THAT PERTAINS TO THE SITING OF A LANDFILL OR AN
ENERGY RESOURCE RECOVERY FACILITY WITH PLANNED DISPOSAL CAPACITY OF TWO
THOUSAND TONS PER DAY OR GREATER, FIFTY THOUSAND DOLLARS FOR A REQUEST
THAT PERTAINS TO THE SITING OF A LANDFILL OR AN ENERGY RESOURCE RECOVERY
FACILITY WITH PLANNED DISPOSAL CAPACITY OF LESS THAN TWO THOUSAND TONS
PER DAY, OR TEN THOUSAND DOLLARS FOR A REQUEST THAT PERTAINS TO THE
SITING OF A SOLID WASTE MANAGEMENT FACILITY OTHER THAN A LANDFILL OR AN
ENERGY RESOURCE RECOVERY FACILITY.
THIS FEE SHALL BE RECEIVED BY THE DEPARTMENT AND DISBURSED AT THE
BOARD'S DIRECTION TO PROVIDE FUNDING FOR MUNICIPAL AND OTHER LOCAL
PARTIES AS PROVIDED IN THIS SECTION. ANY MONEYS REMAINING IN THE FUND
AFTER THE BOARD HAS ISSUED ITS DECISION AND AFTER ALL RELATED
PROCEEDINGS ARE COMPLETED AND THE TIME FOR APPLYING FOR JUDICIAL REVIEW
HAS EXPIRED SHALL BE RETURNED TO THE APPLICANT.
5. MUNICIPAL AND OTHER PARTIES (EXCEPT A MUNICIPALITY WHICH IS AN
APPLICANT) MAY APPLY TO AND RECEIVE FROM THE BOARD FUNDING TO DEFRAY
REASONABLE EXPENSES INCURRED BY SUCH PARTIES FOR EXPERT WITNESSES AND
CONSULTANT SERVICES IN CONNECTION WITH THEIR PARTICIPATION IN
PROCEEDINGS BEFORE THE BOARD OR IN PROCEEDINGS RELATED TO THE ISSUANCE
OF ANY PERMIT OR APPROVAL FOR THE FACILITY. THE BOARD SHALL ASSURE THAT
SUCH FUNDS ARE MADE AVAILABLE ON AN EQUITABLE BASIS AND IN A MANNER
WHICH FACILITATES BROAD PUBLIC PARTICIPATION.
S 27-0714. COMPENSATION FOR SOLID WASTE MANAGEMENT FACILITY HOST COMMU-
NITIES.
1. UPON ISSUANCE OF A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND
PUBLIC NECESSITY BY THE SOLID WASTE MANAGEMENT FACILITY SITE REVIEW
BOARD, THE BOARD SHALL PREPARE A NON-BINDING ASSESSMENT OF ANY INCREASE
IN PUBLIC EXPENDITURES LIKELY TO BE INCURRED BY ANY MUNICIPALITY OR
DISTRICT WITHIN WHICH THE FACILITY IS LOCATED THAT IS ATTRIBUTABLE TO
THE FACILITY'S OPERATION. THE BOARD SHALL ALSO MAKE RECOMMENDATIONS FOR
OTHER OPERATING CONDITIONS OR RESTRICTIONS THAT, BASED ON THE RECORD,
MAY BE WARRANTED TO ALLEVIATE ADVERSE IMPACTS ON AFFECTED COMMUNITIES
RESULTING FROM THE OPERATION OF THE FACILITY. THE ASSESSMENT OF
INCREASED PUBLIC EXPENDITURES AND THE RECOMMENDED CONDITIONS AND
RESTRICTIONS MAY SERVE AS THE BASIS FOR SETTLEMENT BETWEEN THE FACILITY
OWNER/OPERATOR AND THE MUNICIPALITIES AND DISTRICTS IN WHICH THE FACILI-
TY IS LOCATED AND WHICH WILL INCUR INCREASED PUBLIC EXPENDITURES OR
POTENTIALLY INCUR OTHER ADVERSE EFFECTS DUE TO THE OPERATION OF SUCH A
FACILITY.
2. IN THE EVENT THAT A SETTLEMENT ON HOST COMMUNITY FEES AND OTHER
OPERATING CONDITIONS AND RESTRICTIONS NECESSARY TO ALLEVIATE ADVERSE
IMPACTS ON AFFECTED COMMUNITIES CANNOT BE ACHIEVED AMONG THE FACILITY
OWNER/OPERATOR AND THE AFFECTED MUNICIPALITIES AND DISTRICTS, ANY PARTY
TO THE SETTLEMENT MAY SUBMIT A REQUEST TO THE BOARD TO CONVENE A PROCESS
OF BINDING ARBITRATION TO SETTLE OUTSTANDING ISSUES RELATING TO SUCH
FEES AND OTHER OPERATING CONDITIONS AND RESTRICTIONS. THE ARBITRATION
PANEL SHALL BE COMPRISED OF INDEPENDENT PRIVATE ARBITRATORS, AND SHALL
HAVE RELEVANT ARBITRATION BACKGROUND AND EXPERIENCE RELEVANT TO THE
ASSESSMENT OF FINANCIAL IMPACTS. AN ARBITRATION PANEL SHALL BE SELECTED
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FOR INDIVIDUAL SOLID WASTE MANAGEMENT FACILITIES AND SHALL CONSIST OF
THREE MEMBERS, SELECTED AS FOLLOWS:
(A) ONE ARBITRATOR SHALL BE SELECTED BY THE BOARD.
(B) ONE ARBITRATOR SHALL BE SELECTED BY THE APPLICANT.
(C) ONE ARBITRATOR SHALL BE SELECTED UPON MUTUAL AGREEMENT BY THE
AFFECTED MUNICIPALITIES.
3. WITHIN THIRTY DAYS OF ITS APPOINTMENT, THE ARBITRATION PANEL SHALL
SCHEDULE A HEARING ON THE OUTSTANDING ISSUES RELATING TO HOST COMMUNITY
FEES AND OTHER OPERATING CONDITIONS AND RESTRICTIONS NECESSARY TO ALLE-
VIATE ADVERSE IMPACTS ON AFFECTED COMMUNITIES. THE ARBITRATION PANEL
SHALL ISSUE ITS DECISION WITHIN NINETY DAYS OF ITS APPOINTMENT.
4. COMPENSATION TO A MUNICIPALITY OR DISTRICT PURSUANT TO THIS SECTION
MAY INCLUDE BUT NEED NOT BE LIMITED TO OR EXEMPLIFIED BY THE FOLLOWING
PAYMENTS:
(A) IN THE EVENT THAT THE FACILITY WILL BE LOCATED ON PROPERTY WHICH
IS EXEMPT FROM LOCAL PROPERTY TAXATION BY VIRTUE OF PUBLIC OWNERSHIP
THEREOF, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A SUM EQUAL TO THE
AMOUNT WHICH WOULD ANNUALLY BE DUE IF THE LAND UPON WHICH SUCH FACILITY
IS LOCATED AND ANY IMPROVEMENTS THERETO WERE ASSESSED AND TAXED AS REAL
PROPERTY SUBJECT TO LOCAL REAL PROPERTY TAXATION;
(B) PAYMENTS TO DEFRAY ANY INCREASE IN PUBLIC EXPENDITURES BY SUCH
MUNICIPALITY OR DISTRICT CAUSED BY THE FACILITY'S OPERATION; AND
(C) ANY OTHER COMPENSATION THE BOARD SHALL DETERMINE TO BE FAIR AND
EQUITABLE UNDER THE CIRCUMSTANCES.
5. ANY DECISION REACHED BY THE PANEL SHALL BE BINDING ON ALL PARTIES
TO THE DECISION. ANY PARTY TO THE DECISION MAY PETITION THE BOARD TO
MODIFY THE DECISION OF THE PANEL UPON A SHOWING OF A MATERIAL CHANGE IN
THE FACTS KNOWN TO THE PARTIES TO THE SETTLEMENT AT THE TIME IT WAS
ENTERED INTO. THE BOARD MAY MODIFY THE SETTLEMENT TO REFLECT THESE
CHANGED FACTS.
6. JUDICIAL REVIEW OF THE PANEL DECISION ON THE IMPOSITION OF HOST
COMMUNITY FEES IS LIMITED TO A SHOWING OF FRAUD BY A PARTY TO THE DECI-
SION OR AN ABUSE OF DISCRETION BY THE PANEL, OR BOTH.
S 5. This act shall take effect immediately.