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OLR Bill Analysis
sSB 1147 (File 563, as amended by Senate “A”)*
AN ACT CONCERNING THE ENVIRONMENTAL JUSTICE
PROGRAM OF THE DEPARTMENT OF ENERGY AND
ENVIRONMENTAL PROTECTION.
SUMMARY
This bill makes changes in the state’s environmental justice law,
which generally requires applicants seeking to construct, expand, or site
certain facilities in environmental justice communities to engage in a
public participation process. Specifically, the bill does the following:
1. exempts minor modifications of an existing permit for an
affecting facility from the law’s requirements;
2. generally requires applicants subject to the law to (a) file an
assessment of environmental or public health stressors and (b)
submit and receive approval of a public participation report to
show compliance with the requirements for informal public
meetings (e.g., notice, public comment, and video recording);
3. expands the notice that must be given about an upcoming
informal public meeting to include online posts and direct mail
to households within one-half mile of the involved affecting
facility;
4. requires the newspaper advertisement, which must be published
under existing law between 10 and 30 days before the public
meeting, to include information on how interested people can
review project documents (i.e., any complete needs assessment,
alternatives assessment, environmental impact analysis, and
assessment of environmental and public health stressors);
5. requires the facility’s applicant to accept oral and written 2023SB-01147-R01-BA.DOCX
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comments from any interested person and provide an
opportunity for meaningful public participation at the informal
public meeting;
6. requires the chief elected official or town manager, when
negotiating a community environmental benefit agreement to
mitigate an affecting facility’s impacts, to select a resident of the
potentially affected environmental justice community to
participate in the negotiations;
7. requires mitigation in a community benefit agreement to have a
nexus and be proportional to the impacts of the proposed facility;
8. allows the Department of Energy and Environmental Protection
(DEEP) or the Connecticut Siting Council, as applicable, to assess
a reasonable fee on an applicant to cover the costs of
implementing the environmental justice law, including costs for
providing technical assistance to applicants and environmental
justice communities, in addition to any other fee authorized by
law, rule, or regulation.
The bill requires the DEEP commissioner to adopt any necessary and
proper regulations to carry out the environmental justice law’s
purposes. It allows the Siting Council to follow the same regulations in
its decision to approve an application.
The bill also allows DEEP or the Siting Council, as applicable, to deny
a permit for a new affecting facility if it finds that approving the permit
would result in adverse cumulative environmental or public health
stressors in the environmental justice community that are greater than
those experienced in other communities. They may additionally impose
reasonable conditions on a permit to mitigate environmental and public
health impacts if it makes the same findings.
Lastly, the bill makes technical and conforming changes.
*Senate Amendment “A” principally (1) reinstates the exclusion of
institutionalized persons from the definition of an environmental justice 2023SB-01147-R01-BA.DOCX
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community, which the underlying bill removed; (2) reverses the
underlying bill’s expansion of the law to apply to additional affecting
facilities (e.g., solid waste transfer stations, pipelines, and certain large-
scale water diverters); (3) exempts minor modifications of existing
permits from the law’s requirements and provides specific exemptions
for expanded permit applicants; (4) delays the requirement for filing an
environmental or public health stressors assessment until after the
adoption of DEEP’s regulations; (5) adds the nexus and proportionality
requirement for community benefit agreements; and (6) specifies that
the law does not apply to permit renewals or permit modifications.
EFFECTIVE DATE: October 1, 2023
SCOPE OF THE LAW
The environmental justice law’s requirements generally apply to
applications for a certificate of environmental compatibility and public
need, a new or expanded permit, or siting approval from DEEP or the
Siting Council involving an “affecting facility” in an “environmental
justice community” (see BACKGROUND). The bill exempts minor
modifications of existing permits from the law’s requirements.
Under the bill, a “permit” collectively refers to the approval issued in
the above applications. Specifically, it is any individual facility permit,
license, certificate, or siting approval DEEP or the Siting Council issues
to a facility that sets the regulatory and management requirements for
an activity regulated under the laws for (1) certificates of environmental
compatibility and public need and (2) air pollution, solid waste facility,
or water discharge permits. It does not include an authorization or
approval needed to (1) remediate certain hazardous waste sites or (2)
extend the time to complete a facility’s construction.
The bill also specifies that a “major source” of air pollution for
purposes of determining whether a facility is an affecting facility under
the law may be either (1) as defined by the Clean Air Act (CAA), as
under current law, or DEEP’s rules or regulations or (2) a facility that
directly emits, or has potential to emit, at least 100 tons of any air
pollutant or other CAA applicable criteria. 2023SB-01147-R01-BA.DOCX
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STRESSOR ASSESSMENT & PUB LIC PARTICIPATION
DOCUMENTS
By law, applicants for these affecting facilities generally must (1) file,
and receive approval for, a meaningful public participation plan before
filing their permit, certificate, or approval application and (2) consult
with the chief elected officials of the towns in which the proposed
facility will be located or expanded to evaluate the need for a
community environmental benefit agreement (see Public Participation
Plan, below).
The bill generally requires the applicants to additionally (1) file an
assessment of environmental and public health stressors and (2) submit
and receive approval of a public participation report on compliance
with the law’s public participation plan requirements. However, it
exempts expanded permit applicants from filing the assessment, and no
filing is required until DEEP adopts the new regulations required by the
bill (see below).
It also requires the DEEP commissioner to evaluate the potential for
environmental and health stressors when issuing or renewing a
department general permit.
Assessment of Environmental or Public Health Stressors
The bill requires this assessment to evaluate the potential
environmental and public health stressors related to the proposed new
or expanded affecting facility. It must also identify (1) any adverse
environmental or public health stressor that cannot be avoided if a
permit is granted and (2) the environmental or public health stressors
that the affected environmental justice community already experiences.
Under the bill, an “environmental or public health stressor” is any
source of environmental pollution that causes a potential public health
impact.
Public Participation Plan
By law, a “meaningful public participation plan” is one that gives
environmental justice community residents an appropriate opportunity 2023SB-01147-R01-BA.DOCX
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to participate in decisions about a proposed new or expanded facility
that may adversely affect their environment or health.
Among other things, the plan must identify how the applicant will
publicize the date, time, and nature of the informal public meeting about
the proposed facility, in addition to the newspaper notice that existing
law already requires and the direct mail notice the bill requires to be
sent to nearby households (see Direct Mail Notice, below). Currently,
these methods must include posting certain signs and giving written
notice to local and state elected officials. The bill additionally requires
postings on relevant websites and social media platforms to give notice
about the meeting, but the notice must be readily found by searching for
the affecting facility’s name.
Public Participation Report
The public participation report the bill requires to be submitted to
and approved by DEEP must include (1) an affidavit stating that the
applicant complied with the law’s notice (e.g., signs, online, newspaper,
direct mail) and public meeting requirements; (2) all written comments
received; and (3) responses to concerns and questions presented in the
written and verbal comments, along with any changes to the proposed
activity or affecting facility. It must also include a video recording of the
informal public meeting.
Under the bill, this public participation report must be submitted to
DEEP or the Siting Council, as applicable, within 30 days after the
informal public meeting. Applicants for an expanded permit are exempt
from the report requirement.
DIRECT MAIL NOTICE OF INFORMAL PUBLIC MEETING
The bill adds a direct mail notice requirement to inform households
near the proposed or existing affecting facility that is the subject of the
informal public meeting.
Specifically, at least 30 days before the informal public meeting, the
applicant must mail a notice about the meeting to all households within
one-half mile of the new proposed, and not expanded, affecting facility. 2023SB-01147-R01-BA.DOCX
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The notice must be written in all languages spoken by at least 15% of the
population that lives in this radius and include the following
information:
1. the meeting’s date, time, and location;
2. a description of the proposed or expanded affecting facility and
a map showing its location;
3. how an interested person can review project documents,
including any complete needs assessment, alternatives
assessment, environmental impact analysis, or assessment of
environmental or public health stressors;
4. addresses for mailed and online submissions for written public
comments; and
5. any other information DEEP or the Siting Council deems
appropriate.
The applicant must then mail notice to these same households about
any (1) subsequent public participation opportunities that occur as part
of the permit approval process before DEEP or the Siting Council and
(2) notice of tentative or final determination. Applicants for an
expanded permit are exempt from the notice requirement.
INFORMAL PUBLIC MEET ING
Public Participation
The environmental justice law requires the applicant to make a
reasonable and good faith effort to give the public clear, accurate, and
complete information about the affecting facility proposal at an informal
public meeting. The information must include the potential
environmental and public health impacts.
The bill requires the applicant to (1) accept written comments,
submitted by mail or electronically, and oral comments from any
interested party and (2) provide an opportunity for meaningful public
participation at the meeting. The applicant must also video record the 2023SB-01147-R01-BA.DOCX
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meeting and submit the video with the public participation report (see
above).
Multiple Public Meetings
Under the bill, if a permit applicant applies for more than one new
proposed affecting facility, the applicant must only comply with the
environmental justice law once unless DEEP or the Siting Council, as
applicable, determines that more than one informal public meeting is
needed due to the complexity of the permit applications involved. The
bill specifies that this limitation does not restrict DEEP’s or the Siting
Council’s authority to hold or require a public hearing under another
state or federal law, rule, or regulation.
Current law also allows DEEP to waive the requirement for an
additional informal public meeting if the Siting Council has already
approved a meaningful public participation plan and the associated
informal public meeting has been held. The bill instead allows this
waiver if the Siting Council approves the plan or public participation
report, as applicable.
COMMUNITY ENVIRONMEN TAL BENEFIT AGREEMEN T
By law, the applicant for a proposed or new affecting facility must
consult with the chief elected officials of the towns in which the facility
will be located to evaluate whether there must be a community
environmental benefit agreement. For facilities that will be in a
municipality that already has at least five affecting facilities, this
agreement is required. The bill prohibits the DEEP commissioner from
issuing a notice of tentative determination for a new or modified permit
unless the applicant submits a copy of the executed agreement with the
municipality.
A community environmental benefit agreement is a written
agreement where an owner or developer of real property that will be
used for an affecting facility agrees to provide financial resources to
mitigate the facility’s impacts. It is negotiated by the chief elected official
or town manager and must be approved by the municipality’s
legislative body. The bill requires the chief elected official or town 2023SB-01147-R01-BA.DOCX
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manager to select a resident of the potentially affected environmental
justice community to participate in the negotiations of a community
environmental benefit agreement.
Under the agreement, mitigation may be on-site or off-site
improvements, activities, and programs, including things like
environmental education, electric vehicle charging infrastructure,
asthma screening, air monitoring, urban forestry, and trails. But the bill
requires any mitigation to have a nexus and be proportional to the
impacts caused by the proposed facility.
IMPLEMENTING REGULAT IONS
New or Expanded Facilities
The bill requires the DEEP commissioner to adopt needed and proper
regulations to implement the environmental justice law, as amended by
the bill, including provisions on the following:
1. procedures and requirements for creating the meaningful public
participation plan and public participation report;
2. identifying and measuring the relative impact of environmental
and public health stressors across communities;
3. tools for stakeholder industries and sectors to use that consider
any environmental or public health stressors, including those
that help inform decisions about potential locations for proposed
affecting facilities that comply with the law; and
4. standards for denying or placing conditions on permits.
When developing the regulations, the commissioner must consult
with the stakeholder industries and sectors.
PERMIT DECISIONS
Final Action
Complete Application. For applications filed on or after November
1, 2023, the bill deems them insufficient if the applicant fails to fulfill the
law’s notice and public meeting requirements, as amended by the bill. 2023SB-01147-R01-BA.DOCX
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Similarly, the bill makes an application insufficient if its applicant fails
to receive approval of a required public participation report.
Timeframe for Decision. Current law prohibits DEEP or the Siting
Council from acting on a permit, certificate, or approval within 60 days
after the informal public meeting. The bill (1) extends this restriction to
acting on license applications and (2) instead prohibits acting within the
60-day period or before it approves the public participation report,
whichever is earlier.
New Review Requirements. The bill imposes a new review process
for applications DEEP reviews for a proposed affecting facility (but not
for an expanded permit), which is set out in the new regulations the bill
requires (see Implementing Regulations, above). It allows the Siting
Council to also use the regulation’s process for reviewing applications.
This new process does not take effect, however, until the regulations are
adopted, and the bill does not set a deadline for doing this.
Under the bill, DEEP or the Siting Council, as applicable, may deny a
permit application for a proposed affecting facility if it finds that
approving it would, together with other environmental or public health
stressors affecting the environmental justice community involved,
produce adverse cumulative stressors that are higher than those
experienced by other communities in the state, county, or other
geographic area, as DEEP or the Siting Council determines. For DEEP,
the determination must be made in accordance with the new regulations
the bill requires; for the Siting Council, the determination may be made
according to them.
If there is a hearing on an application that is subject to the
environmental justice law, compliance with the applicable regulations
must be considered at the hearing.
The bill requires DEEP or the Siting Council, as applicable, to give the
applicant of a proposed affecting facility written notice about its
tentative determination on compliance with the regulations. It also
requires them to post any determination made under this new process
on their respective websites. 2023SB-01147-R01-BA.DOCX
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The bill allows DEEP or the Siting Council, as applicable, when
granting a permit, to impose reasonable conditions on a proposed
affecting facility’s construction or operation to mitigate environmental
and public health impacts.
Permit Conditions
The bill allows DEEP or the Siting Council, as applicable, to apply
reasonable conditions on a new permit for an affecting facility (not for
an expanded facility) related to its construction and operation to protect
the environment and public health. They may only do this after:
1. reviewing the public participation report and any other relevant
information like testimony and written comments and
2. finding that approval of the permit, as proposed, together with
other environmental or public health stressors affecting the
environmental justice community involved, produce adverse
cumulative stressors that are higher than those experienced by
other communities in the state, county, or other geographic area,
as DEEP or Siting Council determines.
For DEEP, the determination must be made in accordance with the
new regulations the bill requires; for the Siting Council, the
determination may be made according to them.
Continuing Operations
The bill specifies that it does not limit an applicant’s right to continue
facility operations when a permit approval is pending to the extent that
it has that right by law, rule, or regulation. It also specifies that the law
must not be construed to apply to permit renewals or permit
modifications.
BACKGROUND
Affecting Facilities
By law, an “affecting facility” is generally any:
1. electric generating facility with a capacity of more than 10
megawatts; 2023SB-01147-R01-BA.DOCX
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2. sludge and solid waste incinerator or combustor;
3. sewage treatment plant with a daily capacity of more than 50
million gallons;
4. intermediate processing center, volume reduction facility, or
multi-town recycling facility with a combined monthly volume
of more than 25 tons;
5. new or expanded landfill, including one with ash, construction
and demolition debris, or solid waste;
6. medical waste incinerator; and
7. major air pollution source under the CAA (e.g., large factories).
Exemptions to the law include (1) parts of electric generating facilities
that use fuel cells or non-emitting and non-polluting renewable
resources such as wind, solar, and hydropower; (2) facilities that
obtained a Siting Council certificate by January 1, 2000; and (3) facilities
under the state higher education system’s control with a satisfactory
environmental impact evaluation.
Environmental Justice Communities
An “environmental justice community” is (1) any U.S. census block
group, as determined by the most recent census, for which at least 30%
of the population consists of low-income people who are not
institutionalized and have an income below 200% of the federal poverty
level or (2) a distressed municipality.
The Department of Economic and Communit y Development
annually designates distressed municipalities based on high
unemployment and poverty, aging housing stock, and low or declining
rates of job, population, and per capita income growth (CGS § 32-9p).
The current (2022) list of distressed municipalities includes Ansonia,
Bridgeport, Bristol, Chaplin, Derby, East Hartford, East Haven,
Griswold, Groton, Hartford, Meriden, Montville, New Britain, New
London, North Stonington, Norwich, Plainfield, Putnam, Sprague, 2023SB-01147-R01-BA.DOCX
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Sterling, Torrington, Waterbury, West Haven, Winchester, and
Windham.
Towns with current designated census blocks (that are not also
distressed municipalities) are Bethel, Bloomfield, Branford, Brooklyn,
Canaan, Clinton, Columbia, Coventry, Cromwell, Danbury, East
Haddam, East Lyme, East Windsor, Ellington, Enfield, Essex, Fairfield,
Farmington, Glastonbury, Greenwich, Haddam, Hamden, Killingly,
Ledyard, Lisbon, Manchester, Mansfield, Middletown, Milford,
Naugatuck, New Fairfield, New Haven, New Milford, Newington,
North Canaan, Norwalk, Plainville, Portland, Preston, Ridgefield,
Rocky Hill, Sharon, Shelton, Simsbury, Southington, Stafford, Stamford,
Stonington, Stratford, Thomaston, Thompson, Vernon, Wallingford,
Waterford, Watertown, West Hartford, Wethersfield, Willington,
Windsor Locks, and Windsor.
COMMITTEE ACTION
Environment Committee
Joint Favorable Substitute
Yea 30 Nay 3 (03/24/2023)
Appropriations Committee
Joint Favorable
Yea 41 Nay 11 (05/01/2023)