2023 New York Laws › ENV - Environmental Conservation › Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste › Title 11 - Industrial Siting Hazardous Waste Facilities › 27-1105 - Siting Industrial Hazardous Waste Facilities.

§ 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
facilities;
(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.