N.Y. Comp. Codes R. & Regs. tit. 6 § 377.4

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

Section 377.4 - 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 377.3(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 377.7 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.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 377.4

Amended New York State Register June 7, 2023/Volume XLV, Issue 23, eff. 7/22/2023

Amended New York State Register June 21, 2023/Volume XLV, Issue 25, eff. 7/23/2023