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This entry was published on 2014-09-22
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SECTION 27-1105
Siting industrial hazardous waste facilities
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 27, TITLE 11
§ 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

(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.