N.Y. Comp. Codes R. & Regs. tit. 6 § 377.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 377.1 - General

(a)Scope and purpose.

This Part regulates the siting of new industrial hazardous waste facilities located wholly or partially within the State. It establishes procedures for the constituting of a facilities siting board, and defines the respective roles of the department and the board. This Part also prescribes the form of an application for a certificate and contains the criteria by which the board will thereon make its determination.

(b)Applicability.

Any person who commences construction or operation of a new industrial hazardous waste facility on or after September 1, 1979 shall comply with this Part unless specifically exempted under subdivision (f) of this section.

(c)Definitions.

As used in this Part, unless the context otherwise requires:

(1)Board means a facility siting board constituted pursuant to this Part.

(2)Certificate means a certificate of environmental safety and public necessity required pursuant to this Part and Environmental Conservation Law article 27, title 11.

(3)Commissioner means the Commissioner of Environmental Conservation.

(4)Department means the New York State Department of Environmental Conservation.

(5)Disposal means the discharge, deposit, injection, dumping, spilling, leaking or placing of any industrial hazardous waste into or on any land or water, so that such waste or any related constituent thereof may enter the environment or be emitted into the air or discharged into any surface or ground waters of the State.

(6)Environmental assessment form (EAF) means a form used by the department in determining the environmental significance of proposed industrial hazardous waste facilities in accordance with Part 617 of this Title.

(7)Environmental Conservation Law (ECL) means chapter 43-B of the Consolidated Laws of New York State.

(8)Environmental impact statement (EIS) means a written document prepared in accordance with Part 617 of this Title.

(9)Industrial hazardous waste means industrial waste which appears on the list or satisfies the criteria promulgated by the commissioner pursuant to section 27-0903 of the ECL and, until, but not after, the promulgation of such list and criteria, an industrial waste or combination of wastes, which because of its quantity, concentration or physical, chemical or infectious characteristics may:

(i) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

(ii) pose a substantial present or potential hazard to human health or the environment and, therefore, must be segregated and excluded from the general municipal waste system and sewage collection and treatment process.

The department shall make the final determination as to whether an industrial waste is hazardous in accordance with its regulations and guidelines.

(10)Industrial hazardous waste treatment, storage and disposal facility shall mean a specialized facility or site, other than a sewage treatment plant, used for the purpose of treating, storing, compacting, recycling, exchanging or disposing of industrial hazardous waste materials, including treatment, compacting, resource recovery or disposal plants, equipment and furnishings thereof used for the storage, treatment, compacting, composting, shredding, converting, utilization, processing, or final disposal of hazardous waste, including but not limited to mechanical, chemical or thermal processing systems, incinerators, sanitary landfills, other facilities for the storage, reduction or conversion of hazardous waste, including but not limited to transfer stations, baling facilities, railroad and maritime facilities, motor trucks or vehicles and appurtenances, furnishings, equipment and machinery deemed necessary thereto.

(11)Local zoning and land use regulations mean those laws, ordinances, rules and regulations adopted by a municipality pursuant to a master land use plan.

(12)Master land use plan means a long-term, general outline of projected development which has been lawfully adopted by the local planning authority.

(13)Municipality means any town, city, county or village.

(14)Person means any individual, public or private corporation, political subdivision, government agency, industry, partnership, association, firm, trust, estate or any other legal entity whatsoever.

(15)Site means that parcel of property designated by the applicant in the application submitted pursuant to this Part.

(16)Storage means the containment of any industrial hazardous waste, either on a temporary basis, or for a period of years, in such a manner as not to constitute disposal of such waste.

(17)Title shall mean Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

(18)Treatment means any method, technique, or process, including neutralization, utilized to change the physical, chemical, or biological character or composition of any industrial hazardous waste in order to neutralize such waste or to render it nonhazardous, less hazardous, amenable to recovery, amenable to disposal or storage, safer for or amenable to transport, or reduced in volume.

(d)Severability.

If any provision of this Part or the application thereof to any person or circumstance is held invalid, the remainder of this Part and the application of such provisions to persons or circumstances, other than those to which it is held invalid, shall not be affected thereby.

(e)Variances.

(1) Upon written application from any person who is subject to this Part, the department and, after constituting of a board, the board, may grant a variance from one or more specific provisions of this Part, consistent with this subdivision.

(2) Any application for a variance hereunder must:

(i) identify the specific provisions of this Part from which a variance is sought;

(ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique and peculiar to the applicant's particular situation, tend to impose a substantial financial, technological, or safety burden on the applicant or the public; and

(iii) demonstrate that the proposed activity will have no significant adverse impact on the health, safety, welfare, natural resources, or environment of the People of the State and will be consistent with the provisions of the ECL, the purpose of these rules and regulations, and the performance expected from application of these rules and regulations.

(3) In granting any variance hereunder, the department or the board may impose specific conditions reasonably necessary to assure that the subject activity will have no adverse impact on the health, safety, welfare, natural resources, or environment of the People of the State.

(f)Exemptions.

Whatever other provisions of this Title or of the ECL may apply to a facility, the provisions of this Part shall not apply if:

(1) the application for the construction and operation of an industrial hazardous waste facility was submitted to the department, and not denied, prior to September 1, 1979;

(2) the proposed industrial hazardous waste facility will be located at the site of an existing facility and its operation is substantially similar to the existing facility with respect to the mode of waste management and the type and quantity of hazardous waste being managed. For a facility which discontinues operation for a period of time, the applicant must demonstrate to the department that the operation of the facility and the prevailing environmental conditions in the vicinity of the site are substantially the same as when the facility was previously in operation; or

(3) the department determines that the construction and operation of the proposed industrial hazardous waste facility will have no significant environmental impact.

(g)Safeguarding information.

(1) The commissioner and the chairman of the siting board shall ensure that any trade secrets or other proprietary or confidential data or information of a personal nature, required to be furnished pursuant to this Part, are utilized by the department and the siting board solely in connection with their respective responsibilities pursuant to this Part, and that such trade secrets and other proprietary or confidential data or information are not otherwise disseminated without the express written consent of the person furnishing such information, except to the extent required by law in connection with a hearing or court proceeding. When such trade secrets and other proprietary or confidential data or information are required, either by statute, regulation or memorandum of agreement, to be disclosed to EPA upon request, the commissioner and the chairman of the siting board shall do so and submit the claim of confidentiality to EPA. The claim of confidentiality shall be treated in accordance with the regulations of 40 CFR part 2.

(2) Trade secrets and other proprietary or confidential data or information may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, customer lists, production data, or compilation of information within a commercial concern who are using it to fabricate, produce, or compound an article of trade or service having commercial value, and which gives its owner or authorized user an opportunity to obtain a business advantage over competitors who do not know, use or have access to such data and information.

(3) An applicant asserting a claim that specified matter to be submitted with an application pursuant to this Part contains trade secrets, or other proprietary or confidential data, or information of a personal nature, shall set forth such claim in a written request to the department or the board for a determination of confidentiality.

(h)Uniform procedures.

Where procedures relating to the submittal and processing of applications are not specifically set forth in this Part, the procedures set forth in Part 621 and Part 624 of this Title shall apply.

(i)Enforcement.

Any person who violates any of the provisions of this Part or any conditions of a certificate issued pursuant to this Part shall be liable for civil and criminal penalties set forth in those provisions of article 71 of the ECL which are applicable to article 27, title 11 of the ECL.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 377.1