Section 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.