NY Env Conserv L § 27-0917 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 9 - Industrial Hazardous Waste Management 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.