Connecticut 2023 2023 Regular Session

Connecticut Senate Bill SB01147 Comm Sub / Bill

Filed 05/02/2023

                     
 
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General Assembly  Substitute Bill No. 1147  
January Session, 2023 
 
 
 
 
 
AN ACT CONCERNING THE ENVIRONMENTAL JUSTICE PROGRAM 
OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL 
PROTECTION.  
Be it enacted by the Senate and House of Representatives in General 
Assembly convened: 
 
Section 1. Section 22a-20a of the general statutes is repealed and the 1 
following is substituted in lieu thereof (Effective October 1, 2023): 2 
(a) As used in this section: 3 
(1) "Environmental justice community" means (A) a United States 4 
census block group, as determined in accordance with the most recent 5 
United States census, for which thirty per cent or more of the population 6 
consists of low income persons [who are not institutionalized] and have 7 
an income below two hundred per cent of the federal poverty level; or 8 
(B) a distressed municipality, as defined in subsection (b) of section 32-9 
9p; 10 
(2) "Affecting facility" means any (A) electric generating facility with 11 
a capacity of more than ten megawatts; (B) sludge or solid waste 12 
incinerator or combustor; (C) [sewage treatment plant with a capacity of 13 
more than fifty million gallons per day] publicly owned treatment 14 
works in a community with combined sewers that transport both storm 15 
water and sanitary sewage, or an expanded design flow rate for any 16  Substitute Bill No. 1147 
 
 
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publicly owned treatment works; (D) intermediate processing center, 17 
volume reduction facility, solid waste transfer station, resource recovery 18 
facility, chemical recycling facility or multitown recycling facility with a 19 
combined monthly volume in excess of twenty-five tons; (E) [new or 20 
expanded] landfill, including, but not limited to, a landfill that contains 21 
ash, construction and demolition debris or solid waste; (F) medical 22 
waste incinerator; [or] (G) major source of air pollution, as defined by 23 
the federal Clean Air Act; (H) pipeline, terminal or bulk commercial 24 
storage facility not providing direct-to-consumer retail or delivery for 25 
fossil fuels, including coal, oil, petroleum and natural gas; or (I) facility 26 
with a diversion of more than two million gallons of water per day. 27 
"Affecting facility" shall not include (i) the portion of an electric 28 
generating facility that uses nonemitting and nonpolluting renewable 29 
resources such as wind, solar and hydro power or that uses fuel cells, 30 
(ii) any facility for which a certificate of environmental compatibility 31 
and public need was obtained from the Connecticut Siting Council on 32 
or before January 1, 2000, [or] (iii) a facility of a constituent unit of the 33 
state system of higher education that has been the subject of an 34 
environmental impact evaluation in accordance with the provisions of 35 
sections 22a-1b to 22a-1h, inclusive, and such evaluation has been 36 
determined to be satisfactory in accordance with section 22a-1e; or (iv) 37 
a facility with a diversion of water greater than two million gallons in 38 
any twenty-four-hour period that diverts water for public water supply 39 
purposes within a service area, as defined in regulations adopted 40 
pursuant to subsection (b) of section 22a-377, that includes the origin of 41 
such diversion; 42 
(3) "Meaningful public participation" means (A) residents of an 43 
environmental justice community have an appropriate opportunity to 44 
participate in decisions about a proposed facility or the expansion of an 45 
existing facility that may adversely affect such residents' environment 46 
or health; (B) the public's participation may influence the regulatory 47 
agency's decision; and (C) the applicant for a new or expanded permit, 48 
certificate or siting approval seeks out and facilitates the participation 49 
of those potentially affected during the regulatory process; [and]  50  Substitute Bill No. 1147 
 
 
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(4) "Community environmental benefit agreement" means a written 51 
agreement entered into by the chief elected official or town manager of 52 
a municipality and an owner or developer of real property whereby the 53 
owner or developer agrees to develop real property that is to be used 54 
for any new or expanded affecting facility and to provide financial 55 
resources for the purpose of the mitigation, in whole or in part, of 56 
impacts reasonably related to the facility, including, but not limited to, 57 
impacts on the environment, including, but not limited to, air quality 58 
and watercourses, quality of life, asthma rates, traffic, parking and 59 
noise; 60 
(5) "Council" means the Connecticut Siting Council;  61 
(6) "Department" means the Department of Energy and 62 
Environmental Protection;  63 
(7) "Environmental or public health stressors" means: (A) Sources of 64 
environmental pollution, including, but not limited to, concentrated 65 
areas of air pollution, mobile sources of air pollution, contaminated 66 
sites, transfer stations or other solid waste facilities, recycling facilities, 67 
scrap yards and point-sources of water pollution, including, but not 68 
limited to, water pollution from facilities or combined sewer overflows, 69 
or (B) conditions that may cause potential public health impacts, 70 
including, but not limited to, asthma, cancer, elevated blood lead levels, 71 
cardiovascular disease and developmental problems in any 72 
environmental justice community;  73 
(8) "Major source" means (A) a major source of air pollution, as 74 
defined by the federal Clean Air Act or rules or regulations adopted by 75 
the department, or (B) an affecting facility that directly emits, or has the 76 
potential to emit, one hundred tons per year or more of any air pollutant 77 
or other applicable criteria set forth in the federal Clean Air Act; and  78 
(9) "Permit" means any individual facility permit, license, certificate 79 
or siting approval issued by the department or council to a facility that 80 
establishes the regulatory and management requirements for a 81  Substitute Bill No. 1147 
 
 
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regulated activity pursuant to section 16-50k, 22a-174, 22a-208a or 22a-82 
430. "Permit" does not include (A) any authorization or approval 83 
necessary to perform a remediation conducted in accordance with the 84 
regulations established pursuant to section 22a-133k; (B) applications 85 
for or registrations under general permits issued by the department, 86 
provided the Commissioner of Energy and Environmental Protection 87 
shall evaluate the potential for environmental and health stressors when 88 
issuing or renewing any general permit; (C) any permit for a facility 89 
with a diversion of more than two million gallons per day where such 90 
diverted water is used for public water supply purposes within the 91 
exclusive service area from where such water is diverted; (D) any 92 
authorization or approval required for a minor modification of a 93 
facility's major source permit for activities or improvements that do not 94 
increase emissions; or (E) any authorization or approval required for an 95 
extension of time to complete construction of a facility. 96 
(b) (1) Applicants who, on or after January 1, 2009, seek to obtain any 97 
certificate under chapter 277a, new or expanded permit or siting 98 
approval from the Department of Energy and Environmental Protection 99 
or the Connecticut Siting Council involving an affecting facility that is 100 
proposed to be located in an environmental justice community or the 101 
proposed expansion of an affecting facility located in such a community, 102 
shall (A) file an assessment of environmental or public health stressors 103 
and a meaningful public participation plan with such department or 104 
council and shall obtain the department's or council's approval of such 105 
public participation plan prior to filing any application for such permit, 106 
certificate or approval; [and] (B) consult with the chief elected official or 107 
officials of the town or towns in which the affecting facility is to be 108 
located or expanded to evaluate the need for a community 109 
environmental benefit agreement in accordance with subsection (d) of 110 
this section; and (C) submit and receive approval of a public 111 
participation report that shall include, but not be limited to, (i) an 112 
affidavit that the applicant satisfied the requirements of subdivisions (2) 113 
to (5), inclusive, of this subsection; (ii) all written comments received; 114 
and (iii) responses to concerns and questions presented in such written 115  Substitute Bill No. 1147 
 
 
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and verbal comments, including any changes to the activity or affecting 116 
facility proposed. Each assessment of environmental or public health 117 
stressors prepared pursuant to this subsection shall contain an 118 
assessment of the potential environmental and public health stressors 119 
associated with the proposed new or expanded affecting facility, as 120 
applicable, and shall identify any adverse environmental or public 121 
health stressors that cannot be avoided if the permit is granted, and the 122 
environmental or public health stressors already borne by the applicable 123 
environmental justice community. 124 
(2) Each such meaningful public participation plan shall contain 125 
measures to facilitate meaningful public participation in the regulatory 126 
process and a certification that the applicant will undertake the 127 
measures contained in the plan. Such plan shall identify a time and place 128 
where an informal public meeting will be held that is convenient for the 129 
residents of the affected environmental justice community. In addition, 130 
any such plan shall identify the methods, if any, by which the applicant 131 
will publicize the date, time and nature of the informal public meeting 132 
in addition to the notice by mail required by subdivision (3) of this 133 
subsection and the publication required by subdivision [(3)] (4) of this 134 
subsection. Such methods shall include, but not be limited to, (A) 135 
posting a reasonably visible sign on the proposed or existing affecting 136 
facility property, printed in English, in accordance with any local 137 
regulations and ordinances, (B) posting a reasonably visible sign, 138 
printed in all languages spoken by at least fifteen per cent of the 139 
population that reside within a one-half of a mile radius of the proposed 140 
or existing affecting facility, in accordance with local regulations and 141 
ordinances, [and] (C) notifying local and state elected officials, in 142 
writing, and (D) a posting on electronic media, including, but not 143 
limited to, relevant Internet web sites and social media platforms, 144 
provided such notice is readily found by searching for the name of the 145 
affecting facility on the Internet. Such methods may include notifying 146 
neighborhood and environmental groups, in writing, in a language 147 
appropriate for the target audience. The determination of the percentage 148 
of persons that speak a language, for purposes of subparagraph (B) of 149  Substitute Bill No. 1147 
 
 
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this subdivision, shall be made in accordance with the most recent 150 
United States census. 151 
(3) Not less than thirty days prior to the informal public meeting, the 152 
applicant shall send a notice of such informal public meeting by mail to 153 
all residential households located within a one-half-mile radius of the 154 
proposed or existing affecting facility. Such notice shall provide the 155 
date, time and location of such meeting, a description of the proposed 156 
or expanded affecting facility, a map indicating the location of the 157 
affecting facility, information on how an interested person may review 158 
project documents, including any complete needs assessment, 159 
alternatives assessment, environmental impact analysis or assessment 160 
of environmental or public health stressors, addresses for mailed and 161 
Internet-based submission of written public comments and any other 162 
information deemed appropriate by the department or council. The 163 
applicant shall provide such notice in writing in all languages spoken 164 
by not less than fifteen per cent of the population that resides within 165 
such one-half-mile radius of the proposed or existing affecting facility. 166 
Such applicant shall subsequently send notice by mail to all such 167 
residential households of any subsequent public participation 168 
opportunities that occur as part of the permit approval process before 169 
the department or council, and to notify such residential households of 170 
any notice of tentative or final determination by the department or 171 
council. 172 
[(3)] (4) Not less than ten days prior to the informal public meeting 173 
and not more than thirty days prior to such meeting, the applicant shall 174 
publish the date, time and nature of the informal public meeting with a 175 
minimum one-quarter page advertisement in a newspaper having 176 
general circulation in the area affected, and any other appropriate local 177 
newspaper serving such area, in the Monday issue of a daily publication 178 
or any day in a weekly or monthly publication. Such advertisement shall 179 
include information on how an interested person may review project 180 
documents, including any complete needs assessment, alternatives 181 
assessment, environmental impact analysis and assessment of 182  Substitute Bill No. 1147 
 
 
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environmental and public health stressors. The applicant shall post a 183 
similar notification of the informal public meeting on the applicant's 184 
web site, if applicable. 185 
[(4)] (5) At the informal public meeting, the applicant shall make a 186 
reasonable and good faith effort to provide clear, accurate and complete 187 
information about the proposed affecting facility or the proposed 188 
expansion of [a] such facility and the potential environmental and 189 
health impacts of such affecting facility or such expansion. The applicant 190 
shall accept written comments, submitted via mail or electronic mail, 191 
and oral comments from any interested party, and provide an 192 
opportunity for meaningful public participation at the informal public 193 
meeting. Not later than thirty days after such informal public meeting, 194 
the applicant shall submit to the department or council a public 195 
participation report, as described in subdivision (1) of this subsection. 196 
The applicant shall video record the informal public meeting and submit 197 
the recording to the department or council with the public participation 198 
report. 199 
[(5)] (6) The Department of Energy and Environmental Protection or 200 
the Connecticut Siting Council shall not take any action on the 201 
applicant's application for a permit, license, certificate or approval 202 
earlier than [sixty days after the informal public meeting] the date the 203 
department or council approves the public participation report. For any 204 
such application filed on or after November 1, [2020] 2023, if the 205 
applicant fails to undertake the requirements of [subparagraphs (B) to 206 
(D), inclusive, of subdivision (2) of this subsection or subdivision (3) or 207 
(4) of] this subsection, any such application shall be deemed insufficient. 208 
The application of an applicant who fails to receive approval of such 209 
public participation report by the department or council, as applicable, 210 
shall be deemed insufficient. 211 
[(6)] (7) In the event that the Connecticut Siting Council has approved 212 
a [meaningful public participation plan] public participation report 213 
concerning a new or expanded affecting facility and an informal public 214 
meeting has been held in accordance with this subsection, the 215  Substitute Bill No. 1147 
 
 
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Department of Energy and Environmental Protection may [approve 216 
such plan and] waive the requirement that an additional informal public 217 
meeting be held in accordance with this subsection. 218 
(8) In addition to any other fee authorized by law, rule or regulation, 219 
the department or council, as applicable, may assess each permit, license 220 
or certificate applicant a reasonable fee in order to cover the costs 221 
associated with the implementation of this section, including all costs to 222 
provide technical assistance to permit applicants and environmental 223 
justice communities to comply with the provisions of this section. 224 
(c) Any municipality, owner or developer may enter into a 225 
community environmental benefit agreement in connection with an 226 
expanded or new affecting facility. For any application filed on or after 227 
November 1, 2020, for such an affecting facility that: (1) Requires a 228 
certificate under chapter 277a, or (2) constitutes a new or expanded 229 
permit or siting approval from the Department of Energy and 230 
Environmental Protection or the Connecticut Siting Council, and that is 231 
located in an environmental justice community or is proposed to be 232 
located in such a community, the applicant shall enter into such an 233 
agreement with the municipality if there are five or more affecting 234 
facilities in such municipality at the time such application is filed. 235 
Mitigation may include both on-site and off-site improvements, 236 
activities and programs, including, but not limited to: Funding for 237 
activities such as environmental education, diesel pollution reduction, 238 
electric vehicle charging infrastructure construction, establishment of a 239 
wellness clinic, ongoing asthma screening, provision of air monitoring 240 
performed by a credentialed environmental professional, performance 241 
of an ongoing traffic study, watercourse monitoring, construction of 242 
biking facilities and multi-use trails, staffing for parks, urban forestry, 243 
support for community gardens or any other negotiated benefit to the 244 
environment in the environmental justice community. Prior to 245 
negotiating the terms of a community environmental benefit agreement, 246 
the municipality shall provide a reasonable and public opportunity for 247 
residents of the potentially affected environmental justice community to 248  Substitute Bill No. 1147 
 
 
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be heard concerning the requirements of or need for, and terms of, such 249 
agreement. 250 
(d) The chief elected official or town manager of a municipality shall 251 
participate in the negotiations for any such community environmental 252 
benefit agreement and shall implement, administer and enforce such an 253 
agreement on behalf of the municipality, provided any such agreement 254 
negotiated pursuant to this section on and after November 1, 2020, shall 255 
be approved by the legislative body of the municipality prior to 256 
implementation, administration and enforcement of such agreement. 257 
Such chief elected official or town manager shall select a resident of the 258 
potentially affected environmental justice community to participate in 259 
such negotiations.  260 
(e) The terms of any community environmental benefit agreement 261 
negotiated, entered into and approved in accordance with this section 262 
on and after November 1, 2020, shall not constitute a separate and 263 
distinct basis for a pleading to intervene in any administrative, licensing 264 
or other proceeding pursuant to section 22a-19.  265 
(f) (1) The Commissioner of Energy and Environmental Protection 266 
shall adopt regulations, in accordance with the provisions of chapter 54, 267 
as are necessary and proper to carry out the purposes of this section. The 268 
provisions of subsection (g) of this section shall not take effect until the 269 
adoption of the regulations pursuant to this subsection. Such 270 
regulations shall include, but not be limited to, provisions regarding: 271 
(A) Procedures and requirements for creating the meaningful public 272 
participation plan and the public participation report required by this 273 
section; (B) the identification and measurement of the relative impact of 274 
environmental and public health stressors across communities; (C) tools 275 
for stakeholder industries and sectors to use that take account of any 276 
such environmental or public health stressors, including tools to help 277 
inform decisions about potential locations for new or expanded 278 
affecting facilities that comply with the provisions of this section; and 279 
(D) standards for denying or placing conditions on permits. The 280 
commissioner shall consult with stakeholder industries and sectors 281  Substitute Bill No. 1147 
 
 
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when developing the regulations pursuant to this section. 282 
(2) Notwithstanding any provision of the general statutes, the 283 
commissioner may subject the renewal of any permit issued for an 284 
affecting facility to some or all of the provisions of this section and any 285 
regulation adopted pursuant to this subsection by adopting regulations, 286 
in accordance with the provisions of chapter 54, that include, but are not 287 
limited to, the identification of: (A) Each type of renewal permit subject 288 
to the provisions of this subdivision; (B) the types of affecting facilities 289 
subject to the provisions of this subdivision; and (C) the specific 290 
requirements of this section and any regulation adopted pursuant to this 291 
subsection that apply to each such renewal permit and affecting facility. 292 
No renewal permit shall be subject to the requirements of this section 293 
prior to the effective date of regulations adopted pursuant to this 294 
subdivision. 295 
(g) (1) On and after the adoption of regulations pursuant to 296 
subdivision (1) or (2) of subsection (f) of this section, the department's 297 
review of any such application or renewal permit shall be conducted in 298 
accordance with any such regulations, as applicable, and the council's 299 
review of any such application may be conducted in accordance with 300 
any such regulations.  301 
(2) The department or the council, as applicable, may deny any 302 
application for a permit for a new affecting facility upon a finding that 303 
approval of the permit, as proposed, would, together with other 304 
environmental or public health stressors affecting the applicable 305 
environmental justice community, result in adverse cumulative 306 
environmental or public health stressors in such environmental justice 307 
community that are higher than those borne by other communities 308 
within the state, county or other geographic unit of analysis, as 309 
determined by the department or council. Any such determination by 310 
the department shall be made in accordance with the applicable 311 
regulations adopted pursuant to subsection (f) of this section and any 312 
such determination by the council may be made in accordance with such 313 
regulations. 314  Substitute Bill No. 1147 
 
 
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(3) If such permit is granted, the department or council, as applicable, 315 
may impose conditions on the construction and operation of the new 316 
affecting facility that are intended to mitigate environmental and public 317 
health impacts. 318 
(4) The department or the council, as applicable, shall provide notice, 319 
in writing, to any applicant for any such new affecting facility of any 320 
tentative determination regarding compliance with the applicable 321 
regulations adopted pursuant to subsection (f) of this section. 322 
(5) If any hearing is held on any application or renewal permit subject 323 
to the requirements of this section, compliance with the applicable 324 
regulations adopted pursuant to subsection (f) of this section shall be 325 
considered at such hearing. 326 
(6) The department or council, as applicable, shall publish any 327 
determination made pursuant to this subsection to the department's or 328 
council's Internet web site.  329 
(h) Notwithstanding any provision of the general statutes, the 330 
department or council, as applicable, may, after review of the public 331 
participation report and any other relevant information, including 332 
testimony and written comments received in connection with the 333 
meaningful public participation plan, apply conditions to a permit for 334 
the expansion of an existing affecting facility concerning the 335 
construction and operation of the facility to protect the environment and 336 
public health, upon a finding by the department or council, as 337 
applicable, that approval of such permit, as proposed, would, together 338 
with other environmental or public health stressors affecting the 339 
applicable environmental justice community, result in adverse 340 
cumulative environmental or public health stressors in such 341 
environmental justice community that are higher than those borne by 342 
other communities in the state, county or other geographic unit of 343 
analysis, as determined by the department or council. Any such 344 
determination by the department shall be made in accordance with the 345 
applicable regulations adopted pursuant to subsection (f) of this section 346  Substitute Bill No. 1147 
 
 
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and any such determination by the council may be made in accordance 347 
with such regulations. 348 
(i) If a permit applicant applies for more than one permit for a 349 
proposed new or expanded affecting facility, the permit applicant shall 350 
only be required to comply with the provisions of this section once, 351 
unless the department or council, as applicable, determines that more 352 
than one informal public meeting is necessary due to the complexity of 353 
the permit applications necessary for the proposed new or expanded 354 
affecting facility. Nothing in this subsection shall be construed to limit 355 
the authority of the department or council to hold or require any public 356 
hearing, as may be required by any other provision of the general 357 
statutes, federal law or rule or regulation.  358 
(j) Nothing in this section shall be construed to limit the right of an 359 
applicant to continue facility operations during the process of permit 360 
approval to the extent such right is conveyed by an applicable law, rule 361 
or regulation. 362 
This act shall take effect as follows and shall amend the following 
sections: 
 
Section 1 October 1, 2023 22a-20a 
 
LCO Statement: In Subsec. (b)(3) "not more than" was changed to 
"within" for consistency. 
 
ENV Joint Favorable Subst.  
APP Joint Favorable