O F F I C E O F L E G I S L A T I V E R E S E A R C H
P U B L I C A C T S U M M A R Y
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PA 21-88—sHB 6496
Environment Committee
Appropriations Committee
AN ACT CONCERNING CE RTAIN SOIL-RELATED INITIATIVES
SUMMARY: This act allows the Department of Energy and Environmental
Protection (DEEP) commissioner to establish a pilot program to beneficially use
as fill certain reclaimed materials that may have very minor amounts of solid
waste. Under the act, the commissioner may authorize four projects using these
materials, subject to certain conditions, including that there is no harm or threat to
human health, safety, or the environment (§ 1).
The act expands the commissioner’s authority to include, among other things,
establishing regulatory standards for soil health; conducting investigations,
surveys, and research on soil health; and working with soil and conservation
districts and boards on these issues. It also requires the Council on Soil and Water
Conservation to develop guidelines on improving and preserving soil health (§§
2-4).
Lastly, the act requires the DEEP commissioner, by November 1, 2021, to
submit a report to the Environment Committee on the approval process for
maintenance marine dredging projects for the last four years. The report must (1)
describe each dredging project application and (2) analyze how long it took DEEP
to act on each application and specify whether DEEP approved or denied it (§ 5).
EFFECTIVE DATE: October 1, 2021, except the provision for DEEP reporting
on marine dredging projects is effective upon passage.
§ 1 — BENEFICIAL USE PILOT PROGRAM
Program Purpose
Under the act, the pilot program’s primary purposes are to (1) allow the use of
“beneficially reclaimed materials” as fill if there is an engineering need for fill
materials and (2) help reclaim or redevelop environmentally impaired or
underused land.
Acceptable Materials
The act allows the following “beneficially reclaimed materials,” which may
have de minimis amounts of incidentally present solid waste, to be used for
projects accepted as part of the pilot program:
1. soil or dewatered sediment that does not exceed criteria set out in state
regulations for remediating pollution at hazardous waste disposal sites and
properties that had a spill, and criteria for other polluting substances not O L R P U B L I C A C T S U M M A R Y
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provided in the regulations;
2. virtually inert asphalt, brick, concrete (including concrete with pyrrhotite
if the DEEP commissioner gives written approval for its use), or ceramic
materials that do not threaten to pollute ground or surface water;
3. waste sand from metal casting that is not hazardous waste;
4. crushed recycled glass; and
5. street sweepings or catch basin clean-out materials.
These materials may not include those with asbestos; polychlorinated
biphenyls (PCBs); persistent bioaccumulative toxins, which are long-lived toxic
chemicals that accumulate in human tissue; and hazardous waste.
Project Restrictions
The act allows for up to four projects to use these materials, but provides
several restrictions on them. For example, an applicant must have the necessary
municipal approvals for using the materials before submitting its application to
DEEP (see “Municipal Approval,” below).
Under the act, DEEP may not authorize an activity for which it already issued
an individual or general permit. The authorization must also be for (1) a single
location and (2) use of at least 100,000 cubic yards of the materials.
The act requires that the DEEP commissioner find that the use of the materials
does not harm or threaten human health, safety, or the environment. The use must
also be consistent with federal law on proper solid waste management.
The act specifies that (1) someone operating under the pilot program does not
need to obtain a discharge permit, unless the federal Clean Water Act requires it
and (2) the state remediation standards’ soil reuse provisions do not apply to pilot
program projects.
DEEP Protective Guidelines
The act allows the DEEP commissioner to establish authorization guidelines
(1) to protect public health, safety, and the environment and (2) for a letter of
credit (LOC).
Under the act, the guidelines must at least prefer using environmentally
impaired or underused locations, but not in an aquifer protection area. The
locations must be where groundwater quality is (1) suitable for specific industrial
purposes but not human consumption (classified as GB) or subject to municipal
and industrial discharge and unsuitable for human consumption (classified as GC)
and (2) served by a public drinking water supply. The locations must also (1)
operate in compliance with state water quality standards and (2) not adversely
affect sensitive receptors or resources such as water supply wells, wetlands,
floodplains, or threatened or endangered species.
The act requires the commissioner to give public notice of the guidelines, or
revisions to them, on the department’s website. The public must have an
opportunity to submit written comments for at least 30 days after DEEP publishes
the notice. DEEP must then publish any response it has to the comments on the O L R P U B L I C A C T S U M M A R Y
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website.
Municipal Approval
Before applying to DEEP for authorization, a project applicant must obtain
local approvals from each municipality where the materials will be used,
including a (1) valid certificate of zoning approval, special permit, special
exception, variance, or other documentation and (2) copy of wetlands, aquifer
protection, coastal site plan, or other required municipal approvals.
The act also requires applicants to comply with the state environmental justice
law’s public participation and community benefit agreement process, whether or
not the location is in an environmental justice community (i.e., a distressed
municipality or a census block group with at least 30% of the noninstitutionalized
population having an income below a certain amount). The state’s environmental
justice law generally requires applicants for certain projects in these areas to,
before applying to DEEP for the project, (1) obtain approval of, and implement, a
meaningful participation plan (e.g., give certain notices and hold an informal
public meeting) so the public can learn about the proposed project and (2) discuss
with municipal officials the need for a community environmental benefit
agreement to mitigate the project’s impacts (CGS § 22a-20a).
Application Process
The act requires an authorization application to be submitted on DEEP
commissioner-prescribed forms, include a non-refundable $25,000 application
fee, and provide the following information:
1. plan to ensure that only materials meeting the act’s definition of
“beneficially reclaimed materials” be used as fill, including a description
of acceptability criteria for materials proposed for use at the location;
2. plan describing the process for placing and recording the materials’
placement;
3. plan for monitoring water during the filling process and for at least 30
years afterward;
4. proposed LOC conforming to the commissioner’s guidelines, with the
basis for the cost estimate used for it;
5. qualifications of the environmental professional intended to oversee the
project;
6. redevelopment plan for the location, including engineering plans and
drawings;
7. list of municipal approvals required for the project, with a written copy of
each; and
8. any additional information the commissioner requires.
DEEP Authorization Process
Under the act, the process for obtaining an authorization, or a change to one, O L R P U B L I C A C T S U M M A R Y
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involves a public notice and comment period.
Notice. The act requires the DEEP commissioner to publish a notice of intent
to issue an authorization on the department’s website. The notice must include the
following information:
1. applicant’s name and mailing address;
2. project location address;
3. application number and tentative decision on the application;
4. name, address, and telephone number of any applicant agent that
interested people may contact for copies of the application;
5. requested authorization type, with applicable statutory or regulatory
references;
6. description of (a) the project location and (2) any affected natural
resources;
7. available amount of time to submit written comments to the
commissioner; and
8. any other information the commissioner deems necessary.
Comment Period and Review. The act requires a 30-day comment period
beginning after the commissioner publishes the notice. The commissioner must
post a response to any comment she receives on the DEEP website.
Final Decision. Under the act, the commissioner may approve or deny an
authorization based on her review of the submitted information. The act requires
the authorization to clearly define the activity it covers and may include
conditions or requirements as the commissioner deems appropriate. These
conditions or requirements may pertain to investigating or remediating a location
before placing the materials; operation and maintenance; best management
practices; requiring environmental professionals to oversee the projects, including
their qualifications; groundwater monitoring; fill management; closure;
redevelopment or other plans; reporting and recordkeeping; independent auditing;
and term specifications.
The commissioner must require posting a LOC to assure compliance with the
authorization, including implementing a closure plan and performing maintenance
and monitoring after closure. The act allows her to modify, suspend, or revoke an
authorization, under the procedures of the Uniform Administrative Procedure Act
and applicable DEEP rules of practice.
§§ 2-4 — SOIL HEALTH
Commissioner Duties (§ 2)
As she may already do for problems related to soil and water erosion, the act
allows the DEEP commissioner to (1) have surveys, investigations, and research
conducted on soil health and (2) publish and disseminate related information. The
act extends to the soil health activities the commissioner’s existing authorizations
for carrying out soil and water erosion activity, such as entering into agreements
with landowners, acquiring property, or accepting monetary contributions. It also
allows her to cooperate, and enter into agreements, with soil and water O L R P U B L I C A C T S U M M A R Y
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conservation districts and boards to provide federal resources to study and
improve soil health (see below).
Soil and Water Conservation District Boards and Council (§§ 3 & 4)
Existing law requires the commissioner to establish, by regulation, soil and
water conservation districts and boards whose purpose is to help identify and fix
soil and water erosion problems. The act requires the district boards to also advise
her on soil health matters and help implement related programs.
The act allows the commissioner to amend district board regulations to permit
them to develop soil health programs, priorities, and workplans, as they already
may do for soil and water conservation, erosion, and sedimentation control (Conn.
Agencies Regs. § 22a-315-1 et seq.).
As authorized by law, the commissioner established the Council on Soil and
Water Conservation to (1) coordinate the boards’ activities with those of DEEP
and other agencies; (2) propose regulations on soil and water erosion
conservation; and (3) advise and help the commissioner conserve and protect the
state’s natural resources.
The act requires the council to develop guidelines for improving and
preserving soil health and make them publicly available. The council must already
do this for soil erosion and sediment control on land being developed. As it may
already do for soil and water conservation activities, the act allows the council to
seek funding and provide financial support to district boards for soil health
activities.