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Part 361: Siting Of Industrial Hazardous Waste Facilities

(Statutory authority: Environmental Conservation Law, §3-0301 (2) (m), §27-1103(1))

[Effective: February 24, 1982]

[page 1 of 1]

Contents:

Sec.

§361.1 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.

§361.2Certificate and permit requirements.

(a) No person shall initiate construction or operation of a new industrial hazardous waste facility without a certificate unless the proposed facility is exempted pursuant to subdivision 361.1(f) of this Part.

(b) No person who has received a certificate shall be relieved of the obligation to comply with any other provisions of this Title relating to the construction and operation of industrial hazardous waste facilities.

§361.3 Certificate and permit application procedures.

(a) Within 15 calendar days after receipt by the department of an application for the construction and operation of a new industrial hazardous waste facility pursuant to Part 360 or to any other Part of this Title, the department shall determine whether a certificate is required or whether additional information will be needed from the applicant, before the department can determine whether a certificate is required. If additional information is required, the department shall so notify the applicant in writing, specifying the information needed. The submission of such additional information shall commence a new 15-calendar-day period for determination of the need for a certificate.

(b) Prior to a determination by the department pursuant to Part 617 of this Title that the construction and/or operation of a new industrial hazardous waste facility will not have a significant environmental impact, the department shall publish a notice of intent to determine nonsignificance in the Environmental Notice Bulletin. The department shall not determine whether the construction and/or operation of the proposed facility will have a significant environmental impact for at least two weeks after such notice appears in the Environmental Notice Bulletin. In making such determination the department shall take into account any public comments received concerning the proposed determination of nonsignificance. Whenever the department publishes a notice of intent to determine nonsignificance, the time period specified herein for the department's determination of completeness of a certificate application shall be suspended pending the determination of environmental significance.

(c) If the proposed facility does not require a certificate, the department shall so notify the applicant in writing and shall process the permit application in accordance with Parts 617, 621, 624 and any other relevant Parts of this Title.

(d) If the proposed facility requires a certificate, the department shall so notify the applicant in writing. The written notice shall state that:

(1) a complete certificate application as set forth in subdivision (e) of this section must be submitted to the department; and

(2) the department shall be designated lead agency for purposes of the State Environmental Quality Review Act (ECL article 8) unless the department and the board, acting through majority vote, mutually agree otherwise.

(e) The certificate application shall consist of the following:

(1) completed applications for all permits and other entitlements required under the ECL for the proposed facility, unless the applicant shows good cause not to submit any such application at this time;

(2) a draft EIS prepared in accordance with Part 617 of this Title;

(3) the expected sources of hazardous waste for the facility, the proposed methods of transporting wastes to and from the facility and the routes which deliveries will traverse;

(4) a description of the design and capacity of the facility;

(5) a statement concerning the type and volume of wastes to be handled at the facility;

(6) a statement documenting the need for the facility;

(7) a detailed program for closure of the facility which the applicant proposes to implement when the operation of the facility terminates, together with a proposed method for assuring such implementation;

(8) a precise description of the location and boundaries of the proposed site;

(9) a complete statement of all persons who own or have any other interest in any real property on which the site is located;

(10) the name and principal place of business of the intended operator of the proposed facility, if different from the applicant;

(11) the status of the site under local zoning or land use regulations in force on the date of application; and

(12) such other information as the commissioner shall prescribe concerning the impact of the proposed facility on the health, safety and welfare of neighboring populations.

(f) Within 15 calendar days after receipt of the certificate application, the department shall notify the applicant in writing whether the application is complete. If the department fails to mail such notice the application shall be deemed complete. If the department determines that the application is incomplete, the notice shall include a concise statement of the respects in which the application is incomplete. The resubmission of the application or the submission of any additional information shall commence a new 15-calendar-day period for the department to determine completeness.

(g) Upon determining that a certificate application is complete the department shall:

(1) send notice to the applicant of such determination;

(2) cause a notice of application to be published in the next available Environmental Notice Bulletin. Such publication shall be no later than 10 calendar days after the date of such notice;

(3) provide notice to the chief executive officer of each municipality in which the proposed project is located;

(4) direct the applicant to provide notice to all property owners of record within one-half mile of the proposed facility and to such other persons and in such manner as shall be determined by the department;

(5) publish or cause to be published notice of the application in at least two newspapers having a general circulation in the area in which the proposed activity is located, in contiguous areas potentially affected by the proposed action and in the newspaper(s) of record for the township or city in which the proposed facility is located; and

(6) send the application to the Governor and request that a facility siting board be constituted.

(h) All public notices shall be sent by first class mail and the applicant shall provide the department with proof that all notices required by this section were properly issued. All public notices shall include a statement concerning requests for variances from the requirements of this Part. If an applicant requests a variance subsequent to provision of notice as specified in this section, all such public notices shall be reissued as soon as practicable and shall provide notice of all new variance requests.

§361.4 Hearing.

(a) Within 15 calendar days after receipt of the notice of the complete certificate application, the Governor is to constitute a facilities siting board pursuant to section 27-1105 of the ECL for the purpose of conducting an adjudicatory hearing on the certificate application.

(b) The commissioner shall, simultaneously with the constitution of the board, appoint a hearing officer to conduct an adjudicatory public hearing with respect to any permit applications relating to the construction and operation of the facility as set forth in article 8 and article 70 of the ECL. Such hearing shall be held jointly with the board's hearing.

(c) At least 30 calendar days prior to the commencement of the hearing, the department, or the applicant at the direction of the department, shall give notice thereof in the same form and manner as provided for in subdivisions 361.3(g) and (h) of this Part.

(d) At least two weeks prior to the commencement of the joint hearing, the chairman of the board shall direct the parties, their representatives or attorneys to appear for a prehearing conference. At such prehearing conference, the board if designated lead agency pursuant to Part 617 of this Title, either shall announce whether the DEIS as prepared or accepted by the department is acceptable or shall set forth those areas in which the DEIS is deficient. The applicant shall be directed to be prepared to remedy any deficiencies during the joint hearing in a manner satisfactory to the board. In the event that the board is designated lead agency pursuant to Part 617 of this Title and subsequently determines that the DEIS has major deficiencies in scope, it may direct the applicant to submit a supplemental DEIS. In such situations, the board shall cause a revised notice of hearing to be published in an identical manner to the original notice; such revised notice shall reflect the fact that a supplemental DEIS has been prepared. Nothing in this section shall limit the chairman's ability to use the prehearing conference for other purposes as set forth in Part 624 or any other Part of this Title.

(e) Within 60 calendar days after their appointment, the board and the hearing officer shall conduct a joint hearing with respect to the certificate application and any permit applications required under the ECL for the construction and operation of the proposed facility. Such hearing shall be conducted according to the procedures set forth in Part 624 of this Title except to the extent that these procedures are modified by this Part. The chairman of the board and the hearing officer shall enter into a memorandum of agreement regarding their obligations and responsibilities with respect to the conduct of the hearing. The applicant and all parties to the hearing shall be provided with a copy of the memorandum of agreement.

(f) On or before 60 calendar days after receipt by the board of a complete record as defined in paragraphs (a) through (e) of subdivision 1 of section 302 of the State Administrative Procedure Act, the board shall issue a hearing report including its determination on the certificate application. The determination shall be based upon substantial evidence in view of the entire record and shall result in a decision which either grants a certificate containing any conditions the board deems appropriate or denies a certificate. The board shall deny the certificate if:

(1) residential areas and contiguous populations will be endangered;

(2) the construction or operation of the facility would be contrary to local zoning or land use regulations in force on the date the department receives the application for an industrial hazardous waste facility. If a proposed facility requires a zoning variance or special use permit in order to be consistent with local zoning or land use regulations, the board may approve the certificate conditioned upon the receipt of such variance or special use permit from the appropriate local authority;

(3) the facility does not conform to the siting criteria set forth in section 361.7 of this Part; or

(4) the board finds that the facility is not necessary or is otherwise not in the public interest.

The chairman of the board shall mail written notice of its decision to the applicant, the department and all parties to the hearing.

(g) The board shall have no functions with respect to the approval or disapproval of the construction and operation of an industrial hazardous waste facility other than those functions specifically set forth herein. The responsibility for any modification, suspension or revocation of the certificate, except as to site approval itself, or the approval of any permits required for the construction or operation of an industrial hazardous waste facility shall lie with the department. Any modification, suspension or revocation of the certificate by the department shall be in accordance with the procedures set forth in Parts 621 and 624 of this Title.

§361.5 Department action.

The department shall act upon all permit applications within the time periods set forth in Parts 621 and 624 of this Title. If the board denies the certificate before the department takes action on any permit application(s), all such permit applications shall be deemed denied.

§361.6 Certificate and permit conditions.

(a) Certificates.

(1) The board may set forth the period of time in which the applicant must commence construction of a facility for which it shall have granted a certificate.

(2) All certificates issued pursuant to this Part shall be transferable only upon prior written approval of the department.

(3) The board may impose such other reasonable conditions on the certificate as it deems appropriate.

(4) If the department grants the applicant a permit pursuant to Part 360 of this Subchapter, the certificate and any conditions thereon shall merge and become part of said permit. Any modification, suspension or revocation of the permit granted pursuant to Part 360 and all rules and regulations applying to such permit modifications, suspension or revocation shall apply in a like manner.

(b) Permits. Any conditions imposed on the certificate shall be incorporated as conditions of the permit granted by the department pursuant to Part 360 of this Subchapter.

§361.7 Facility siting criteria.

(a) General. The board in making its determination to grant, conditionally or otherwise, or to deny a certificate shall consider the criteria listed in subdivision (b) of this section. The specific criteria set forth in subdivision (b) of this section each relate three distinct situations relative to such criteria. Situation (1) is considered to be the most favorable with respect to siting requirements, situation (2) is considered less favorable and situation (3) is considered least favorable.

(b) Criteria.

(1) Population density in the vicinity of the proposed site.

(i) General considerations. The board shall focus its inquiry on the current population density in areas adjacent to the proposed site and on population projections for such areas. Population density within 0.5 mile of the proposed site boundary shall be the prime consideration unless specific conditions unique to a particular site dictate otherwise. The population density range examples included below are appropriate for a major high technology hazardous waste management facility utilizing a comprehensive arrangement of storage, treatment and disposal technologies such as recycling, incineration, detoxification and solidification/land burial. This hypothetical facility would have an approximate annual treatment capacity of 25 million gallons or more of hazardous wastes and would represent a situation where potentially significant impacts have been identified which may adversely affect populations immediately adjacent to the site boundary. On the other hand, considerably greater population density ranges would be appropriate for the most favorable, less favorable and least favorable situations in the case of another hypothetical hazardous waste management facility which is to handle substantially smaller volumes of wastes, and as a result of the nature of the facility, its operation would pose a relatively small potential hazard to adjacent populations.

(ii) Specific criteria.

(a) The residential and nonresidential population within 0.5 mile of the site boundary.

(1) The population density is very low (e.g., less than 150 persons per square mile).

(2) The population density is moderate (e.g., in a range of 150-400 persons per square mile).

(3) The population density is high (e.g., greater than 400 persons per square mile).

(b) The projected population and the rate of growth for the area within 0.5 mile of the site boundary during the 20-year period following initial site operation.

(1) The population is not expected to increase.

(2) The population is expected to increase above current levels at a rate less than the rate forecasted for the county in which the site is located.

(3) The population is expected to increase above current levels at a rate greater than the rate forecasted for the county in which the site is located.

(2) Population adjacent to transport route.

(i) General considerations. The board shall consider the population within 0.5 mile of the transport route, defined as the route(s) between the site entrance and the interstate/limited access highway interchange(s), which is to be used by site-bound motor vehicles to deliver wastes to the site. The paramount concern is the extent to which an accident occurring in transit will result in exposure and injury to the populations along the routes. The population range examples included below are appropriate for the transport routes providing access to the entrance of a major high technology hazardous waste management facility utilizing a comprehensive arrangement of storage, treatment and disposal technologies such as recycling, incineration, detoxification and solidification/land burial. The hypothetical facility would have an approximate annual treatment capacity of 25 million gallons or more of hazardous wastes and would represent a situation where potentially significant impacts have been identified which may adversely affect populations immediately adjacent to the site boundary and the transport routes. On the other hand, considerably greater population ranges would be appropriate for the most favorable, less favorable and least favorable situations in the case of another hypothetical facility which is to receive substantially smaller volumes of wastes, and as a result of the nature and volume of the wastes processed by the facility, the delivery of such wastes would pose a relatively small potential hazard to populations adjacent to the transport route(s).

(ii) Specific criteria.

(a) The residential and nonresidential population for areas within 0.5 mile of the anticipated transport routes.

(1) The population is low (e.g., less than 500 persons).

(2) The population is moderate (e.g., in a range of 500-1,500 persons).

(3) The population is high (e.g., greater than 1,500 persons).

(b) The projected population and the rate of growth for areas within 0.5 mile of the transport routes during the 20-year period following initial site operation.

(1) The population is not expected to increase.

(2) The population is expected to increase above current levels at a rate less than the rate forecasted for the county in which the site is located.

(3) The population is expected to increase above current levels at a rate greater than the rate forecasted for the county in which the site is located.

(3) Risk of accident in transportation.

(i) General considerations. The board shall evaluate the risk associated with the transportation of hazardous wastes to the proposed site. Accident risk is a function of the probability of an accident and the consequences of an accident, should one occur. The transport route(s) between the site entrance and the interstate/limited access highway interchange(s) over which the wastes will be delivered to the site shall be considered by the board.

(ii) Specific criteria.

(a) Mode of transportation.

(1) The transportation mode(s) used are those which have a low associated accident rate.

(2) The transportation mode(s) used would have a somewhat higher accident rate associated with their utilization.

(3) The transportation mode(s) used has the highest rate of accidents.

(b) Length of transport route.

(1) The wastes will be transported only a short distance to the site (less than 5 miles).

(2) The wastes will be transported a moderate distance to the site (a range of 5-15 miles).

(3) The wastes will be transported a substantial distance to the site (greater than 15 miles).

(c) Accident rate of transport route.

(1) Where motor vehicles are employed, the transport route is characterized by a low accident rate.

(2) Where motor vehicles are employed, the transport route has a somewhat higher accident rate.

(3) Where motor vehicles are employed, the transport route has a very high accident rate.

(d) Structures within 0.5 mile of the transportation route.

(1) There are less than 50 residences, and no schools or hospitals within 0.5 mile of the transportation route.

(2) There are between 50 and 150 residences, and no schools or hospitals.

(3) There are more than 150 residences and one or more schools or hospitals.

(e) Transportation restrictions (traffic intersections, traffic/railroad intersections, tunnels, bridges, and toll booths).

(1) The number of restrictions per mile is less than four.

(2) The number of restrictions per mile is between four and eight.

(3) The number of restrictions per mile is greater than eight.

(f) Nature and volume of waste being transported.

(1) The nature and volume of the waste being transported to the site would pose no potential adverse environmental or health effects in the event of an accident.

(2) The nature and volume of the waste being transported to the site would pose an insignificant potential for adverse environmental or health effects in the event of an accident.

(3) The nature and volume of the waste being transported to the site would pose a significant potential for adverse environmental or health effects in the event of an accident.

(4) Proximity to incompatible structures.

(i) General considerations. The linear distance from the site boundary to incompatible structures must be considered (e.g., residence, airport, school, hospital, church, commercial centers, nursing home). Acceptable buffer zones separating residences and certain other types of sensitive populated structures from the types of operations conducted at hazardous waste sites are needed.

(ii) Specific criteria.

(a) Proximity to airports.

(1) There are no airport runways within two miles of a site.

(2) There are airport runways used by turbojets and piston type aircraft located between one and two miles of a site.

(3) There are airport runways used by turbojets and piston type aircraft located between 0.5 and 1 mile of a site.

(b) Proximity to other incompatible structures.

(1) There are no residences, schools, hospitals, churches, commercial centers, nursing homes or other sensitive populated structures within 0.5 mile of the site boundary.

(2) There is one or more residences, schools, hospitals, churches, commercial centers, nursing homes or other sensitive populated structures within 0.25 mile to 0.5 mile of the site boundary.

(3) There is one or more residences, schools, hospitals, churches, commercial centers, nursing homes or other sensitive populated structures within 0.25 mile of the site boundary.

(5) Utility lines.

(i) General considerations. The location of a proposed site shall take into account existing or proposed major utility lines. This is to insure that the generation, transportation, treatment, storage or disposal of hazardous wastes at, near or about such a site will not interfere with, cause damage to, or otherwise disrupt the operation of major utility lines.

(ii) Specific criteria.

(a) Proximity to major utility lines.

(1) There are no such utility lines in the vicinity of the site.

(2) There is at least one such utility line in the vicinity of the site but relocation is not necessary.

(3) Relocation of one or more such utility lines is necessary.

(6) Municipal effects.

(i) General considerations. The site shall be considered for consistency with the intent of the municipal master land use plan, and with local laws, ordinances, rules and regulations which have not been adopted pursuant to a master land use plan. It is important to insure that the construction and operation of the proposed facility will not adversely impact on planning schemes developed by the municipalities in which they are located. Further, the short- and long-term financial effects of the addition of the proposed facility to the municipality shall be considered. Both the increased tax revenues and the added burden of providing services to the facility are important factors.

(ii) Specific criteria.

(a) Consistency with the intent of master land use plan.

(1) The siting of the proposed facility is consistent with the specific intent and overall approach of the master land use plan.

(2) The siting of the proposed facility is generally consistent with the specific intent and overall approach of the master land use plan, although some inconsistencies are present.

(3) The siting of the proposed facility has major inconsistencies with the specific intent and overall approach of the master land use plan.

(b) Consistency with local laws, ordinances, rules and regulations.

(1) The siting of the proposed facility is consistent with those local laws, ordinances, rules and regulations which have not been adopted pursuant to a master land use plan.

(2) The siting of the proposed facility is generally consistent with those local laws, ordinances, rules and regulations which have not been adopted pursuant to a master land use plan, though some inconsistencies are present.

(3) The siting of the proposed facility has major inconsistencies with those local laws, ordinances, rules and regulations which have not been adopted pursuant to a master land use plan.

(c) Public expense/revenue tradeoffs.

(1) Public revenues associated with the facility would far exceed the public expenses that are likely to be incurred over the short- and long-term (i.e., first 20 years of operation).

(2) Public revenues associated with the facility would only marginally exceed the public expenses that are likely to be incurred over the short- and long-term (i.e., first 20 years of operation).

(3) Public expenses associated with the proposed facility would be greater than the public revenues that are expected to accrue over the short- and long-term (i.e., first 20 years of operation).

(7) Contamination of ground and surface waters.

(i) General considerations. The board shall consider the potential for groundwater and surface water contamination as the result of the construction and operation of the site. Both onsite and off-site effects and proposed methods to mitigate any adverse effects relating to the contamination of all ground and surface waters shall be analyzed.

(ii) Specific criteria.

(a) Ground and surface water aspects

(1) The site is optimally located. It is not in hydraulic contact with and no contamination problems are anticipated with respect to:

- floodplains

- wetlands

- recharge zones

- surface waters

- aquifers

(2) The site is less than optimally located and is in hydraulic contact with one or more of the following factors:

- floodplains

- wetlands

- recharge zones

- surface waters

- aquifers

However, it is anticipated that these locational limitations can be overcome without extensive effort.

(3) The site's locational characteristics associated with:

- floodplains

- wetlands

- recharge zones

- surface waters

- aquifers,

present severe problems with respect to water contamination. Extensive efforts would be required to overcome these natural conditions.

(b) Runoff.

(1) The natural topography associated with the site is advantageous; it will inhibit surface water runoff from entering and leaving the active site.

(2) The natural topography associated with the site may not prevent surface water runoff from entering and leaving the site's active area; therefore, some site modification may be necessary.

(3) The natural topography associated with the site will encourage surface water runoff to enter and leave the active site area; extensive site modifications will be necessary to overcome these natural conditions.

(c) Hydrogeological characteristics.

(1) Natural soil conditions at the site are optimal; the soil characteristics would impede any groundwater contamination.

(2) Subsurface conditions at the site do not present any major problems with respect to groundwater contamination; however, site modifications may be required to further reduce the risk of groundwater contamination.

(3) Subsurface conditions at the site are not desirable; extensive site modifications would be required to reduce the risk of groundwater contamination.

(8) Water supply sources.

(i) General consideration. The board shall consider all aspects of the facility's impact on sources of water supply for human and animal consumption. The board shall take into account the effect that the facility will have on surface water or aquifers located on and in the vicinity of the site which are used for domestic, agricultural or industrial purposes. The location of boundaries of water supply watersheds both public and private are of prime importance. The board shall consider the current use and potential uses for such bodies of water and the extent to which the facility will create conditions inconsistent with those uses.

(ii) Specific criteria.

(a) Relationship to water supply sources.

(1) The proposed site is located favorably. It is not in close proximity to:

- public or private drinking water supplies or livestock water supplies.

- public or private bodies of recreational water.

- agricultural, commercial or industrial water supplies.

Therefore, no potential problems are anticipated.

(2) The proposed site is in an acceptable location. It is located within close proximity to:

- public or private drinking water supplies or livestock water supplies.

- public or private bodies of recreational water.

- agricultural, commercial or industrial water supplies.

However, mitigative measures will be used to protect water supply sources.

(3) The proposed site is in an unfavorable location. It is located within close proximity to:

- public or private drinking water supplies or livestock water supplies.

- public or private bodies of recreational water.

- agricultural, commercial or industrial water supplies.

Although mitigative measures are expected to be employed, they may not be sufficient to insure the protection of water supply sources.

(9) Fire and explosions.

(i) General considerations. Due to the nature of the wastes, special consideration must be given by the board to the potential for fires and explosions at the site. Because of the inherent quality of the wastes, the chief focus shall be on proposed safety measures and emergency response techniques.

(ii) Specific criteria.

(a) Minimum distances.

(1) Distances from the site to residential, commercial, and industrial buildings, public highways, railroads, etc. are substantially greater than minimums established in the American Table of Distances for Storage of Explosives, by the Institute of Makers of Explosives (q.v.), 420 Lexington Avenue, New York, NY 10017, May 1983. The above document is available for inspection and copying in Rm. 209 of the New York State Department of Environmental Conservation offices at 50 Wolf Rd., Albany, NY 12233, or can be directly obtained from the sources listed for the given reference.

(2) Distances from the site to residential, commercial, and industrial buildings, public highways, railroads, etc., meet minimums established in the above-mentioned table.

(3) The site is less than the minimum established distances mentioned above, or the applicant has not considered appropriate minimum distances.

(b) Fire departments and emergency medical services.

(1) The site is in an area serviced by organized, fully manned, 24-hour fire departments and emergency medical teams.

(2) The site is in an area serviced by organized voluntary fire departments and emergency medical teams.

(3) The area in which the site is located is not served by a fire department or emergency medical team.

(c) Proximity to fire department and firefighting water supply. A suitable water supply shall be as recommended by the New York State Department of State Office of Fire Prevention and Control.

(1) The site is relatively close (e.g., within three miles) to the fire department, or onsite firefighting capability exists to allow for a rapid response, and to a suitable water supply.

(2) The site is farther away (e.g., three to five miles) from the fire department's location and from a suitable water supply.

(3) The site is farther away (e.g., more than five miles) from the fire department's location and from a suitable water supply.

(10) Air quality.

(i) General considerations. Siting of a facility must take into account air quality problems which may result from the operation of the facility or accidental fires and explosions which may occur. The board shall consider potential air quality problems which may occur as the result of historical or estimated meteorological conditions and to what extent such respective problems and conditions will affect neighboring communities.

(ii) Specific criteria.

(a) Atmospheric stability. A site must be evaluated on the basis of the frequency of occurrence of stable atmospheric conditions which are conducive to the development of high pollution levels.

(1) Areas in which atmospheric conditions are historically "unstable" are most acceptable.

(2) Areas in which atmospheric conditions are historically "neutral" or "less stable" are less acceptable.

(3) Areas in which atmospheric conditions are historically "stable" are least acceptable.

(b) Prevailing wind direction. The population exposure to air pollution in the vicinity of a site will depend upon the frequency distribution of wind directions for the area. These may be determined from representative historical data for the area or estimated on the basis of general meteorological principles.

(1) Areas located downwind from populated areas are most acceptable.

(2) Areas located perpendicular to populated areas, relative to prevailing winds, are less acceptable.

(3) Areas located upwind from populated areas are the least acceptable.

(c) Wind speed. Concentrations of air pollutants emitted from ground level sources are inversely proportional to the wind speed. Hence, the frequency distribution of wind speeds in a site area indicates the potential for high concentrations of pollutants.

(1) Areas most likely to be associated with higher wind speeds are most acceptable.

(2) Areas in which wind speeds are predominantly moderate are less acceptable.

(3) Areas of low wind speed are least acceptable.

(11) Areas of mineral exploitation.

(i) General considerations. Areas of concern are those where mineral resources of solid or liquid form have been removed by various procedures. Such areas commonly present limitations to land disposal facilities due to excavation close to or into groundwater, avenues of rapid transmittal of contaminants should leakage or spillage occur through boreholes or improperly or uncased wells, and structural instability and possibility of subsidence due to extensive subsurface removal of mineral resources.

(ii) Specific criteria.

(a) Risk of subsidence.

(1) Areas in which mineral exploitation has not involved subsurface removal are most acceptable.

(2) Areas in which mineral exploitation has involved some subsurface removal are less acceptable.

(3) Areas in which mineral exploitation has involved substantial subsurface removal are least acceptable.

(12) Preservation of endangered, threatened, and indigenous species.

(i) General considerations. The board shall focus on adverse impacts of the facility on endangered, threatened, and indigenous species or critical habitat for wildlife generally and the extent to which mitigation measures can be effectively implemented.

(ii) Specific criteria.

(a) Developmental and operational impacts on endangered, threatened, and indigenous species or critical habitat.

(1) Sites are most acceptable where the development and operation of proposed facilities is not expected to jeopardize the continued existence of endangered, threatened, and indigenous species by destruction or adverse modification of their habitat.

(2) Sites are less acceptable where the development and operation of proposed facilities could possibly jeopardize the continued existence of endangered, threatened, and indigenous species by destruction or adverse modification of their habitat, but where effective mitigative measures are expected to be used.

(3) Sites are least acceptable where the development and operation of proposed facilities is likely to jeopardize the continued existence of endangered, threatened, and indigenous species by destruction or adverse modification of their habitat, and where mitigative measures are either ineffective or not expected to be used.

(13) Conservation of historic and cultural resources.

(i) General considerations. The construction and operation of the facility may affect the preservation of historic and cultural resources. The extent to which these resources will be disturbed and/or lost and measures to mitigate adverse effects shall be considered by the board. The board shall also consider the facility's impact on the public's access to nearby historic and cultural resources and any negative impact on the visitation to these resources.

(ii) Specific criteria.

(a) Proximity to historical or cultural resources.

(1) Sites are most acceptable where the development and operation of proposed facilities is not expected to adversely affect the preservation or use of significant historic and cultural resources.

(2) Sites are less acceptable where the development and operation of proposed facilities could possibly, wholly or partially, adversely affect the preservation or use of significant historic and cultural resources, but where effective mitigative measures are expected to be used.

(3) Sites are least acceptable where the development and operation of proposed facilities is likely to adversely affect the preservation or use of significant historic and cultural resources, and where mitigative measures are expected to be either ineffective or not used.

(14) Open space, recreational, and visual impacts.

(i) General considerations. The board shall consider the extent to which the facility will diminish available open space and recreational resources used by the surrounding communities and the visual aesthetic impact of the facility and its proximity to areas that are much traveled by the general public. The board shall consider both actual and constructive deprivation of the use of these resources. Proposed mitigation measures should be considered as well.

(ii) Specific criteria.

(a) Proximity to open space and recreational resources.

(1) Sites are most acceptable where the development and operation of proposed facilities are not expected to adversely affect the presence or use of existing or proposed open space and recreation resources.

(2) Sites are less acceptable where the development and operation of proposed facilities could possibly affect the presence or use of existing or proposed open space and recreation resources, but where effective mitigative measures are expected to be used.

(3) Sites are least acceptable where the development and operation of proposed facilities are likely to remove or adversely affect the use of existing open space and recreation resources, and where mitigative measures are expected to be ineffective or are not expected to be used.

(b) Relationship to scenic views or vistas.

(1) Sites are most acceptable where the development and operation of proposed facilities do not adversely affect the view of scenic points, vistas, and other elements that are visually pleasing. Overall, the quality of the visual scene is either improved or maintained.

(2) Sites are less acceptable where the development and operation of proposed facilities partially eliminate or obstruct the view of scenic points, vistas, and other elements that are visually pleasing. Overall, the quality of the visual scene is somewhat limited.

(3) Sites are least acceptable where the development and operation of proposed facilities wholly eliminate or obstruct the view of scenic points, vistas, and other elements that are visually pleasing. Overall, the quality of the visual scene is severely diminished.

(c) Degree to which proposed facilities are readily noticeable to passers-by.

(1) Sites are most acceptable where proposed facilities are not readily noticeable to passers-by.

(2) Sites are less acceptable where proposed facilities could be readily noticeable to passers-by, but where visual barriers or cover are expected to be used.

(3) Sites are least acceptable where proposed facilities are readily noticeable to passers-by, and where visual barriers or cover are not expected to be used or are not expected to be effective.

(c) Application of the criteria.

(1) The board shall make determinations relating to the specific criteria. The board shall insure that its conclusions are consistent with the intent as expressed in the general considerations associated with each siting consideration.

(2) The tables following this section represent guidelines for evaluating the relative importance of each criterion. The board may alter the weight given to any or all of the criteria depending upon specific circumstances unique to the proposed site. The board shall reallocate weights among remaining criteria should one or more criteria not be applicable to a specific site, such that the sum of the average weights for the remainder of the criteria equals 100. The board shall determine the importance assigned to each criterion and signify the same in its report.

(3) The relative desirability of a proposed facility shall be determined by the board by applying its conclusions to the siting criteria to the tables following this section in the manner set forth in Appendix 17, infra. Based on the tables, the numerical value which the board determines represents the relative desirability of the proposed facility shall determine whether the siting criteria have been satisfied. Facilities which score 200 or above do not meet the siting criteria. Facilities which score below 200 are adequately sited but may require the imposition of special conditions under the certificate.

(4) Nothing herein shall limit the authority of the board to deny an application if residential areas and contiguous populations will be endangered, if construction or operation of such facility would be contrary to local zoning or land use regulations in force on the date of the application or the board finds that the facility is not necessary or is otherwise not in the public interest.

§Appendix I

For each siting condition, a siting consideration weight is assigned which may differ from the average weight based on the nature of the facility (see table 1).

Within the context of reviewing the siting considerations, each criterion is evaluated separately and a numerical value assigned to it. Assignment of a value of "1" means that the site conforms closely with the most desirable site conditions, assignment of a value of "2" means that the site has problems but is not wholly undesirable and an assignment of a value of "3" means that the site is undesirable from the viewpoint of the criterion being evaluated.

The assigned numerical value is multiplied by the percent of siting consideration weight for each evaluation criterion to determine the criterion score. The sum of criteria scores is then multiplied by the siting consideration weight to determine the siting consideration score for each siting criteria (see table 2). The procedure is repeated for each criterion. The resultant scores are then totalled to arrive at the total site score. Consult table 3 for an example of calculating the score for a siting condition.



Table 1 - Siting Considerations Average Weights and Special Case Weight Changes
Siting Consideration Facility Type
Average Weights Landfill Incinerator Transfer/Storage Pits/Ponds/Lagoons Treatment
Population Density 10
Population Adjacent to Transport Route 7
Risk of Accident in Transportation 10 +(2-4)
Proximity to Incompatible Structures 3
Utility Lines 1
Municipal Effects 4
Contamination of Ground and Surface Waters 18 -(2-3) +(2-4) -(2-3)
Water Supply Sources 8
Fires and Explosions 11 +(2-4) +(1-3)
Air Quality 12 +(4-6) +(1-2)
Areas of Mineral Exploration 3 +(1) +(1) -(1) -(1)
Preservation of Endangered, Threatened, and Indigenous Species 6
Conservation of Historic and Cultural Resources 4
Open Space, Recreational and Visual Impacts 3 +(1-2) +(1-2) -(1-2) +(1-2) -(1-2)



Table 2 - Siting Evaluation Worksheet
Siting Consideration Criteria % of Siting Consideration Weight Rating 1, 2 or 3 Siting Scores Sum of Criteria Score Siting Consideration Weight Siting Consideration Score
Population Density Population within 0.5 miles of the site boundary 70 10
The projected population and the rate of growth for the area within 0.5 miles of the site boundary during the 20 year period following initial site operation 30
Population Adjacent to Transport Route Population for areas within 0.5 miles of anticipated transportation routes 70 7
The projected population and the rate of growth for areas within 0.5 miles of the transport routes during the 20 year period following initial site operation 30
Risk of Accident in Transportation Mode of transportation 10 10
Length of transport route 15
Accident rate of transport route 20
Structures within 0.5 miles of the transportation route 10
Transportation restrictions 15
Nature and volume of waste being transported 30
Proximity to Incompatible Structures Proximity to airports 50 3
Proximity to other incompatible structures 50
Utility Lines Proximity to major utility lines 100 1
Municipal Effects Consistency with the intent of master land use plan 10 4
Consistency with local laws, ordinances, rules and regulations 10
Public expense/revenue tradeoffs 80
Contamination of Ground and Surface Waters Ground and surface water aspects 40 18
Runoff 20
Hydrogeological characteristics 40
Water Supply Sources Relationship to water supply resources 100 8
Fires and Explosions Minimum distance 50 11
Fire Department and emergency medical services 20
Proximity to fire department and fire fighting water supply. A suitable water supply shall be as recommended by the New York State Department of State Office of Fire Prevention and Control 30
Air Quality Atmospheric stability 20 12
Prevailing wind direction 50
Wind speed 30
Areas of Mineral Exploration Risk of subsidence 100 3
Preservation of Endangered, Threatened, and Indigenous Species Developmental and operational impacts on endangered, threatened and indigenous species or critical habitat 100 6
Conservation of Historic and Cultural Resources Proximity to historical or cultural resources 100 4
Open Space, Recreational and Visual Impacts Proximity to open space and recreational resources 50 3
Relationship to scenic views or vistas 30
Degree to which proposed facilities are readily noticeable to passerby 20



Table 3 - Siting Evaluation Calculation Example
Siting Consideration Criteria % of Siting Consideration Weight Rating 1, 2 or 3 Siting Scores Sum of Criteria Score Siting Consideration Weight Siting Consideration Score
Risk of Accident in Transportation Mode of transportation .10 x 2 = .20
Length of transport route .15 x 3 = .45
Accident rate of transport route .20 x 1 = .20
Structures within 0.5 miles of the transportation route .10 x 1 = .10 2.0 x 10 = 20
Transportation restrictions .15 x 1 = .15
Nature and volume of waste being transported .30 x 3 = .90
Site Score (Sum of Siting Consideration Scores) 150