Section 27-0908. Hazardous waste reduction plans

1.  When  used  in  this  section,  the following terms shall have the
  following definitions:
    a. "Acute hazardous waste" means any waste  identified  or  listed  as
  such in the regulations promulgated under section 27-0903 of this title.
    b.  "Generator"  means  any  person,  by  site,  whose  act or process
  produces hazardous waste or whose act first causes a hazardous waste  to
  become subject to regulation.
    c.  "Hazardous  waste" means any waste identified or listed as such in
  the  regulations  promulgated  under  section  27-0903  of  this  title,
  including "acute hazardous waste".
    2. For the purposes of this section, hazardous wastes generated by any
  corrective  action  required pursuant to this title for a release from a
  hazardous waste treatment, storage  or  disposal  facility,  or  by  the
  remediation  of  an inactive hazardous waste disposal site as defined in
  subdivision two of section 27-1301 of this article, or by the cleanup of
  a release to the environment reported pursuant to article 17, 37  or  40
  of  this chapter, or demolition and construction debris, or wastes which
  are otherwise subject to the requirements of this section shall  not  be
  included  in the calculation of the amount of hazardous wastes generated
  by a person annually, nor shall such wastes  be  subject  to  the  waste
  reduction planning requirements for this section.
    3.  a.  Any generator of equal to or greater than one thousand tons of
  hazardous waste in the calendar year  nineteen  hundred  ninety  or  any
  subsequent  calendar  year  shall  prepare,  implement and submit to the
  department a written hazardous waste reduction plan on  or  before  July
  first of the following calendar year.
    b.  Any  generator  of  equal  to or greater than five hundred tons of
  hazardous waste in the calendar year nineteen hundred ninety-one or  any
  subsequent  calendar  year  shall  prepare,  implement and submit to the
  department a written hazardous waste reduction plan on  or  before  July
  first of the following calendar year.
    c.  Any  generator of equal to or greater than fifty tons of hazardous
  waste in the calendar year nineteen hundred ninety-two or any subsequent
  calendar year shall prepare, implement and submit to  the  department  a
  written  hazardous  waste  reduction plan on or before July first of the
  following calendar year.
    d. Any generator of equal to  or  greater  than  twenty-five  tons  of
  hazardous waste in the calendar year nineteen hundred ninety-five or any
  subsequent  calendar  year  shall  prepare,  implement and submit to the
  department a written hazardous waste reduction plan on  or  before  July
  first of the following calendar year.
    e.  Notwithstanding  any  other  provision  of  this  subdivision, any
  generator required to hold  a  hazardous  waste  storage,  treatment  or
  disposal  permit  for the on-site management of hazardous waste pursuant
  to section 27-0913 of  this  title  shall  prepare  and  submit  to  the
  department,  a  written hazardous waste reduction plan on or before July
  first, nineteen  hundred  ninety-one  or  as  part  of  any  new  permit
  application, and shall thereafter implement the plan.
    4.  The  hazardous  waste  reduction  plan required under this section
  shall include:
    a. an identification of the amounts and types of any  acute  hazardous
  waste as reported pursuant to subdivision six of section 27-0907 of this
  title;  and  an  identification  of  the  amounts and types of hazardous
  wastes generated during the previous calendar year which are either  (i)
  in  amounts  greater  than  five tons or (ii) which account for at least
  ninety percent of all hazardous wastes generated by  such  generator  at

  that  facility,  whichever  represents  the  greater amount of hazardous
  wastes. For each such hazardous waste, such plan shall also include:
    (1)  a description of the process, operation or activity that resulted
  in the generation of such waste;
    (2) a calculation of the amount of such waste generated  per  unit  of
  production output or raw material used, or other appropriate index, or a
  demonstration why the calculation cannot be provided; and
    (3)  an  estimate,  and bases for such estimate, of the costs incurred
  for managing such waste, including but not limited  to,  storage  costs,
  on-site  treatment  or  disposal costs, transportation costs, commercial
  disposal  fees  and  regulatory  fees  or  a  demonstration   why   such
  calculation cannot be provided.
    b.  For  each  such  waste  identified pursuant to paragraph a of this
  subdivision, an evaluation of the  technical  feasibility  and  economic
  practicability,  including  return  on investment, of implementing waste
  reduction processes, technologies or operational changes  to  reduce  or
  eliminate  the  generation of such waste. Such evaluation shall consider
  the technical feasibility and economic practicability, where applicable,
  of:
    (i) substitution of non-toxic or less toxic inputs to  the  production
  process  which  result  in a reduction in the volume or toxicity of such
  waste;
    (ii) reformulation or redesign of end products to eliminate production
  inputs or production processes that result in  the  generation  of  such
  waste;
    (iii)  modification  or redesign of production processes, technologies
  or equipment which result in a reduction in the volume  or  toxicity  of
  such waste;
    (iv)  changes  in  materials  usage,  handling  and storage practices,
  including improved inventory control, preventive maintenance, spill  and
  leak  prevention, and waste segregation, which will reduce the volume or
  toxicity of such waste;
    (v) the use of closed loop reclamation, reuse or  recycling  processes
  or  technologies  which  directly  recycle  such  wastes  back  into the
  production process; and
    (vi)  the  use  of  on-site  or  off-site  recycling  technologies  or
  processes  that  reduce the amount of such waste that must be treated or
  disposed of.
    c.  Establishment  and  description  of  a  program  for  implementing
  technically   feasible  and  economically  practicable  waste  reduction
  alternatives. Such program shall include:
    (i) establishment of a general corporate, facility  or  organizational
  waste  reduction policy, including a statement of waste reduction goals,
  along with a plan for communicating such policy and statement  of  goals
  to relevant employees and management personnel;
    (ii)  a  time  schedule for implementing each technically feasible and
  economically  practicable  waste  reduction   technology,   process   or
  operational   change   identified   pursuant  to  paragraph  b  of  this
  subdivision;
    (iii)  designation  of  the  office  or  department  responsible   for
  implementing the waste reduction plan;
    (iv)  a  method  of  waste  reduction measurement which will provide a
  basis for charting waste reduction trends over time; and
    (v)  appropriate  employee  training   programs   to   assure   proper
  implementation  of the economically practicable and technically feasible
  waste reduction alternatives identified pursuant to paragraph b of  this
  subdivision.

    d.  An  evaluation  of  the  anticipated  reduction,  in tons or other
  appropriate measurement, in the amount of hazardous wastes  produced  by
  the  generator  as  a  result  of  the  implementation  of  each  of the
  technically  feasible  and  economically  practicable  waste   reduction
  options identified pursuant to paragraph b of this subdivision.
    e. An evaluation of the extent, if any, to which the implementation of
  each  of  the  technically  feasible  and economically practicable waste
  reduction options identified pursuant to paragraph b of this subdivision
  may result in the  transference  of  hazardous  wastes  into  any  other
  environmental media and the environmental benefits, if any, of the waste
  reduction option resulting in such transference.
    5.  The  hazardous  waste  reduction  plan  required  pursuant to this
  section shall be updated at least biennially to reflect changes  in  the
  types  and  amounts  of  hazardous  wastes produced by the generator. In
  preparing such update, the generator shall evaluate  or  reevaluate  the
  technical  feasibility  and  economic  practicability of waste reduction
  alternatives as required pursuant to subdivision four  of  this  section
  for  each such waste, and, if appropriate, shall revise the schedule for
  implementing technically feasible  and  economically  practicable  waste
  reduction  alternatives;  provided,  that  no evaluation or reevaluation
  shall be required for such wastes no longer produced by  the  generator.
  Such update shall provide continuity with previously prepared plans.
    6. As a part of its hazardous waste generator report required pursuant
  to  subdivision  six  of  section  27-0907 of this title, each generator
  required to prepare a hazardous waste reduction plan  pursuant  to  this
  section   shall  submit  to  the  department  an  annual  status  report
  describing such generator's progress in achieving its time schedule  for
  implementing  technically  feasible  and  economically practicable waste
  reduction alternatives, pursuant to paragraph c of subdivision  four  of
  this  section.  If  such  generator does not implement a waste reduction
  technology, process  or  operational  change  identified  in  such  time
  schedule,  the  annual  status  report  shall  identify  the reason such
  activity was not implemented  and  include  a  reasonable  revised  time
  schedule  for  implementing  such  waste  reduction  alternative.  If  a
  generator determines that any  method  of  waste  reduction  chosen  and
  implemented  is not achieving the degree of waste reduction anticipated,
  notwithstanding commitments made in the plan  or  biennial  update,  the
  generator  may  choose and implement another waste reduction alternative
  more likely to achieve waste reduction. The generator shall explain such
  action in the annual status report and account for such  action  in  the
  biennial  updates  pursuant to paragraphs c, d and e of subdivision four
  of this section.
    7. On or  before  January  first,  nineteen  hundred  ninety-one,  the
  department  shall  prepare  and  distribute  a guidance manual to assist
  generators in complying with the requirements of this section.
    8. The department shall review each plan submitted  pursuant  to  this
  section  according to the schedule provided hereafter. The submission of
  such  plan  shall  not  be  considered  a  permit   application   within
  subdivision  four  of  section  70-0105 of this chapter and shall not be
  deemed to be a license application within subdivision  four  of  section
  one hundred two of the state administrative procedure act.
    a. After July first, nineteen hundred ninety-one, the department shall
  review  and  may  reject,  in accordance with the standards set forth in
  subdivision nine of this section, those  portions  of  such  plan  which
  address hazardous wastes which are managed in a land disposal facility.
    b.  After  July  first,  nineteen hundred ninety-three, the department
  shall review and may reject, in accordance with the standards set  forth
  in  subdivision  nine of this section, those portions of such plan which

  address hazardous wastes which are managed through treatment,  including
  wastes  managed through thermal destruction or wastes burned as fuel for
  the purpose of recovering usable energy; and
    c.   On  or  after  July  first,  nineteen  hundred  ninety-five,  the
  department shall review and may reject, in accordance with the standards
  set forth in subdivision nine of this section, all plans submitted by  a
  generator  utilizing  recovery,  reuse  or recycling, except closed loop
  recycling directly back  into  the  production  process,  as  management
  methods.
    d. Notwithstanding any other provision of law the department shall not
  be  authorized  to reject any plan or biennial update for which a notice
  of deficiency pursuant to paragraph a of subdivision ten of this section
  has not been provided to the generator within twelve months of the  date
  such plan or biennial update was submitted.
    9.  The  review  of  hazardous  waste reduction plans conducted by the
  department pursuant to the schedule set forth in  subdivision  eight  of
  this section shall be subject to the following standards. The department
  may reject any plan or biennial update thereof which:
    a.   fails   to  contain  all  the  components  required  pursuant  to
  subdivision four of this section;
    b. fails  to  apply  generally  accepted  engineering,  scientific  or
  economic principles and practices;
    c. accomplishes waste reduction by transference to other environmental
  media without an environmental benefit from such transference;
    d.  is  inconsistent  with  the  preferred  hazardous waste management
  practices hierarchy set forth in section 27-0105 of this article;
    e. involves conduct which is  prohibited  by  any  applicable  law  or
  regulation;
    f.  fails  to provide a basis for charting waste reduction trends over
  time;
    g. beginning with the submission of the first biennial  update,  fails
  to  demonstrate  reasonable  progress  in implementing those technically
  feasible  and  economically  practicable  waste  reduction  alternatives
  chosen  by  the  generator  according  to  the  time  schedule developed
  pursuant to paragraph c of subdivision four of this section; or
    h.  beginning with the submission of the first biennial update,  fails
  to  demonstrate  reasonable  progress  in  waste reduction employing the
  methods of waste reduction and calculation provided in the plan,  or  as
  modified  in  the  annual report, or fails to reevaluate the technically
  feasible and economically practicable waste  reduction  alternatives  as
  required pursuant to subdivision five of this section.
    10. a. In proposing to reject any plan or biennial update thereof, the
  department  shall  provide  to  the  generator  a  notice  detailing the
  specific deficiencies the department has identified consistent with  the
  standards set forth in subdivision nine of this section.
    b.  Upon  receipt of such notice, the generator shall have up to sixty
  days to prepare a rebuttal or to modify the plan or biennial  update  to
  address  the  deficiencies  identified  in the notice and to submit such
  rebuttal or modified plan or update to the department.
    c. If the department determines that the plan or update should not  be
  rejected,  it shall notify the generator within thirty days of submittal
  of a rebuttal or modified plan or update. If the  department  determines
  that  the  rebuttal  or  modified  plan  or  update  has  not adequately
  addressed the specific deficiencies identified in the notice, or if  the
  rebuttal  or  modified  plan  or update is not submitted within the time
  period specified in paragraph b of this subdivision, the  department  in
  its  discretion  may  require further modifications, consistent with the
  specific deficiencies identified in the notice,  within  a  time  to  be

  determined  by  the  department,  or make a determination to reject such
  plan or update. Any determination to require further modifications shall
  be made and provided to the generator within thirty days of submittal of
  a rebuttal or modified plan or update.
    d.  Immediately  upon  making  a  determination  to  reject  a plan or
  biennial update the department shall provide to the generator  a  notice
  of  final  rejection.  Such  notice  of final rejection shall detail the
  specific  deficiencies  consistent  with  the  standards  set  forth  in
  subdivision nine of this section.
    e. Within fifteen days of the date of a notice of final rejection from
  the  department  pursuant to this subdivision, a generator may request a
  hearing pursuant to article three of the state administrative  procedure
  act. The department shall notify the generator of a date and place for a
  hearing, to be commenced not later than sixty days from the date of such
  notification, unless an extension of time has been agreed to pursuant to
  paragraph j of this subdivision.
    f.  The  department  may  not  require any modification to the plan or
  biennial update or raise any issue at  hearing  not  identified  in  the
  notice  of  final  rejection  provided  pursuant  to paragraph d of this
  subdivision.
    g. The certification prohibition in subdivision eleven of this section
  shall not be effective until a determination is made by  the  department
  after hearing, or until time to request such hearing has expired.
    h. Any final determination of the department is reviewable pursuant to
  article seventy-eight of the civil practice law and rules.
    i.  Such review shall be commenced within the time limits set forth in
  section two hundred seventeen of the civil practice law and rules.
    j. Any time period specified in this subdivision may  be  extended  in
  writing by mutual consent of the generator and the department.
    11.  Any  generator who has submitted a hazardous waste reduction plan
  according to the time schedule set forth in subdivision  three  of  this
  section,  which  plan  has  not  been  rejected  by  the  department, is
  authorized to make the certifications required  under  sections  27-0907
  and  27-0913  of  this  title; provided, however, that no such generator
  shall make such certifications if such plan has  been  rejected  by  the
  department.  These  restrictions  shall  not  apply  to  hazardous waste
  generated prior to the date the plan was rejected.
    12. Information required to be provided to the department  under  this
  section  shall  be  subject to the provisions of section 27-0919 of this
  title.
    13. On or before January first,  nineteen  hundred  ninety-three,  the
  department shall prepare and present to the governor and the legislature
  a  report  analyzing  the  desirability  of  requiring  waste  reduction
  pursuant to this section on the  part  of  generators  of  greater  than
  fifteen  tons  and  less  than  twenty-five  tons of hazardous waste per
  calendar year. Such report shall include the  number  of  generators  in
  this  category,  the  amount  of wastes produced by such generators, the
  environmental benefit likely  to  be  achieved,  an  evaluation  of  the
  potential   economic  impact  on  industry  and  a  description  of  the
  additional resources that the department would require  to  analyze  and
  approve waste reduction plans submitted by this group of generators.
    14.   The   department   shall   not  impose  planning  and  reduction
  requirements other than those authorized pursuant to  this  section  for
  those  hazardous  wastes  which are managed in a land disposal facility,
  managed  through  treatment,  or  managed  through  recovery,  reuse  or
  recycling  and  which  are  subject to the requirements of this section.
  Provided however,  nothing  herein  shall  be  construed  to  limit  the

  department's  authority  contained  elsewhere in this chapter to require
  planning and reductions in emissions, discharges or other releases.