NY Env Conserv L § 23-1719 (2021)
2021 New York Laws ENV - Environmental Conservation Article 23 - Mineral Resources Title 17 - Liquefied Natural and Petroleum Gas 23-1719 - Non-Conforming Facilities; Conformance to Safety Criteria; Moratorium.

§ 23-1719. Non-conforming  facilities;  conformance  to safety criteria;moratorium.The legislature finds that existing facilities have  been  constructed   and  are  in  the  process  of  being  used  which  by  reason  of their   construction  in  residential  areas  or  in  dangerous   proximity   to   contiguous  populations,  or otherwise, are in violation of the terms of   this act, and, having been constructed before its  enactment,  have  not   been  approved in accordance with the procedures herein required. Taking   into account the needs of the service areas  involved,  the  substantial   capital  investment  of  the  utilities  therein,  and  the  changes  in   corporate plans that compliance with this title will entail, as  against   the  hazards  posed  to  surrounding  and  contiguous  areas  and  their   populations by the potential  mishandling  or  accidental  discharge  of   liquefied natural or petroleum gas in its cryogenic state, the following   procedure  is  established  to conform existing facilities to the safety   criteria herein prescribed, or, in the  alternative,  to  reexamine  the   necessity  of their use in current locations, and to require alternative   siting.1. Effective on passage hereof,  and  until  regulations  pursuant  to   section 23-1709 are adopted and filed, no liquefied natural or petroleum   gas  facility  may  be  constructed,  reconstructed, enlarged in storage   capacity, or, if  constructed  but  unused,  put  into  actual  use  and   operation  in this state, and no environmental safety permit pursuant to   section 23-1707 of this title shall be issued for such facility.2. With regard to any non-conforming liquefied  natural  or  petroleum   gas  storage  or  conversion  facility  in  actual  use and operation on   September first, nineteen hundred  seventy-six,  the  following  special   procedures shall apply:a.  On or before September first, nineteen hundred seventy-six, or the   thirtieth day after the effective date of this title, whichever shall be   later, the department shall notify any such non-conforming  facility  of   the provisions of this section and of this title, and shall advise it of   the  procedures  to  be  followed  hereunder  in terms of conformance to   safety criteria or alternative siting.b. Within thirty days after this title shall  become  effective,  such   non-conforming  facility  shall  give  the initial notice required under   subdivision  two  of  section  23-1717,   specifying   by   geographical   description the municipality or municipalities, or parts thereof, within   the  state  within  which  it  is  handling or otherwise using liquefied   natural or  petroleum  gas,  with  the  nature  of  such  use,  storage,   transportation,   or  conversion,  with  the  amounts  thereof  in  each   location, on a monthly and annual basis, with any projected increase  or   decrease  in  the  use or handling thereof at such location or locations   within the state on a five year basis from date of report.c. Within sixty days thereafter, the  department  shall  complete  the   consultation  and  report  required  by  subdivisions  three and four of   section 23-1717, and the notification required by the first sentence  of   subdivision  five of that section. Thereafter, further proceedings under   subdivision five  shall  be  integrated  with  the  hearing  hereinafter   directed  to  be had with regard to the non-conforming facility; and the   implementation of  the  balance  of  section  23-1717,  with  regard  to   training and qualification of municipal fire department personnel, shall   be  effected in accordance with the determination of the department with   regard to the non-conforming facility.d. Within one hundred and eighty days after this  title  shall  become   effective,  a  public  hearing  or hearings shall be held in the area or   areas in which the non-conforming facility or  facilities  are  located.   Such  hearing  or  hearings  shall  be held on sixty days' notice and as    otherwise provided in subdivisions two and  three  of  section  23-1711.   Notice  shall  be given by the facility or facilities in accordance with   subdivision three thereof, and public participation shall be afforded by   appropriate  location and scheduling, and the opportunity to submit oral   or written statements for the record.e. In the adjudicatory phase of the hearing or hearings, evidence  may   be  received  relating  to  the criteria set forth in section 23-1709 as   they relate to the non-conforming  facility,  and  with  regard  to  the   capability  of  municipal  fire  department  personnel  to  control  and   extinguish fire resulting from mishandling  and  accidental  release  of   liquefied  natural and petroleum gas during its storage, transportation,   or conversion. At the time of the notice of hearing the department shall   make public its report under paragraph c  of  subdivision  two  of  this   section, together with all information secured by it with respect to the   training   and   qualification  of  the  municipal  fire  department  or   departments and their personnel to control or extinguish  fires  related   to the use of the non-conforming facility, and additional oral testimony   by  the  municipal  fire  department or departments with respect thereto   shall be required at the hearing.3. Upon the  basis  of  the  record  the  department  shall  render  a   decision, (a) permitting the facility to continue at the location, under   such  terms, conditions, or modification of procedures as the department   may deem appropriate; or (b) directing discontinuance  of  the  facility   upon a showing of alternate means of meeting the service needs currently   satisfied  thereby,  or  upon a showing that the service needs currently   satisfied thereby are not sufficient to outweigh the public interest  in   safety   within   the  terms  of  section  23-1711.  Location  within  a   residential area or in dangerous  proximity  to  contiguous  populations   shall  not,  in  and of themselves, be determinative with respect to the   department determination, but shall be considered along with  the  other   factors  set  forth  in  section 23-1709 as criteria for siting, and the   information elicited before and at  the  hearing  with  respect  to  the   training  and  qualification  of  municipal fire department personnel to   control or extinguish fires related to the  facility  under  subdivision   two   of   this  section,  in  determining  whether  or  not  to  permit   continuation of the facility at the existing location. In the  event  it   is  determined to permit continuation of the facility, it shall be under   such limitations in terms of time and  conditions  as  will  permit  the   department  currently  to  review  the  status  of  the facility, and to   integrate  its  continued  operation  with  the  regulation   of   other   facilities  and  activities  subject to this title to be certified under   sections 23-1707 and 23-1713. In the event it is  determined  to  direct   discontinuance  of the facility, it may be effected over the course of a   phase-out  period  not  to  exceed  three  years  from   the   date   of   determination,  in  order  to  arrange for alternate facilities or other   means of meeting approved service needs of the area currently served  by   the  facility. In connection with the foregoing, it shall be appropriate   at the hearing or  hearings  provided  under  this  section  to  receive   evidence  with  regard  to capital investment in any such non-conforming   facility, the extent  of  amortization  and  of  tax  writeoff  thereof,   adaptability  for  alternate  use,  availability  of alternate siting or   means of meeting demonstrated and approved service needs  of  the  area.   With  regard thereto, it shall be appropriate to solicit information and   recommendations from the  public  service  commission  with  respect  to   consumer  needs and the meeting thereof in economical fashion consistent   with the requirements of this title, and from the state  energy  office,   if  established,  with  regard  to  state energy policy. The cost of the   hearing and of allocated departmental overhead shall be assessed against    the non-conforming facility pursuant to subdivisions two  and  three  of   section  23-1715.  It  is  anticipated that any hearing or hearings held   under this section with regard to non-conforming  facilities  will  also   relate  to  the  function  of  the  department  in  adopting regulations   establishing criteria for the siting of liquefied natural and  petroleum   gas  facilities,  and such shall also be considered in the allocation of   expense with regard to hearing or hearings held under this section.