N.Y. Comp. Codes R. & Regs. tit. 6 § 377.7
Current through Register Vol. 46, No. 45, November 2, 2024
Section 377.7 - 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 condtions 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 625 Broadway, 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. N.Y. Comp. Codes R. & Regs. Tit. 6 § 377.7