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 23-202—sSB 1147
Environment Committee
Appropriations Committee
AN ACT CONCERNING TH E ENVIRONMENTAL JUST ICE PROGRAM
OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL
PROTECTION
SUMMARY: This act 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 act does the following:
1. provides specific exemptions for minor modifications to existing permits
and expanded permits, and also broadly provides that the environmental
justice law must not be construed to apply to permit renewals or permit
modifications;
2. generally requires applicants subject to the law, other than applicants for
expanded permits, 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 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; and
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 giving technical assistance to applicants and O L R P U B L I C A C T S U M M A R Y
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environmental justice communities, in addition to any other fee authorized
by law, rule, or regulation.
The act 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 a decision to approve an
application.
The act 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 they make the same findings.
Lastly, the act makes technical and conforming changes.
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 act
exempts minor modifications of existing permits from the law’s requirements. The
act also specifies that the law must not be construed to apply to permit renewals or
permit modifications (but appears to include provisions explicitly applying to
permit modifications).
Under the act, 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 act also specifies that a “major source” of air pollution for purposes of
determining whether a facility is an affecting facility under the law is either (1) as
defined by the federal Clean Air Act (CAA), as under existing 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.
STRESSOR ASSESSMENT AND PUBLIC 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 O L R P U B L I C A C T S U M M A R Y
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Participation Plan, below).
The act 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. It exempts applicants for expanded permits from these new
requirements and no filing is needed until DEEP adopts the new regulations the act
requires (see below).
Assessment of Environmental or Public Health Stressors
The act requires this assessment to evaluate the potential environmental and
public health stressors (i.e., sources of environmental pollution that cause a
potential public health impact) 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.
Public Participation Plan
By law, “meaningful public participation” gives environmental justice
community residents an appropriate opportunity to participate in decisions about a
proposed new or expanded facility that may adversely affect their environment or
health.
Among other things, the meaningful public participation 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 act requires to be sent to nearby
households (see Direct Mail Notice, below). By law, these methods must include
posting certain signs and giving written notice to local and state elected officials.
The act additionally requires postings on relevant websites and social media
platforms to give notice about the meeting, but the notice must also be readily found
by searching for the affecting facility’s name.
Public Participation Report
The public participation report the act 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 act, 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. O L R P U B L I C A C T S U M M A R Y
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INFORMAL PUBLIC MEET ING
Public Participation
The environmental justice law requires the applicant for a proposed or expanded
facility 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 act 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 meeting and submit the video with the public
participation report (see above).
Multiple Public Meetings
Under the act, 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
applications involved. The act 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.
Prior law allowed DEEP to waive the requirement for an additional informal
public meeting if the Siting Council had already approved a meaningful public
participation plan and the associated informal public meeting was held. The act
instead allows this waiver if the Siting Council approves the plan or public
participation report, as applicable.
Direct Mail Notice
The act 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 but exempts applicants for an expanded permit from this requirement.
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 or existing affecting facility. 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 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; O L R P U B L I C A C T S U M M A R Y
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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 these
notice requirements.
COMMUNITY ENVIRONMEN TAL BENEFIT AGREEMEN T
By law, the applicant for a proposed expanded 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 act 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. The act also exempts minor modifications or improvements of
existing permits from the benefit agreement requirement that otherwise applies for
municipalities with five or more affecting facilities.
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 act requires the chief elected official or
town manager to select a resident of the potentially affected environmental justice
community to participate in the agreement’s negotiations.
By law, an agreement’s 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 act requires it to have a nexus and be proportional to the impacts
caused by the proposed facility.
IMPLEMENTING REGULAT IONS
The act requires the DEEP commissioner to adopt needed and proper
regulations to implement the environmental justice law, as amended by the act,
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 O L R P U B L I C A C T S U M M A R Y
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comply with the law; and
4. standards for denying or placing conditions on permits.
When developing the regulations, the commissioner must consult with
stakeholder industries and sectors.
PERMIT DECISIONS
Final Action
Complete Application. For applications filed on or after November 1, 2023, the
act deems them insufficient if the applicant fails to fulfill the law’s notice and public
meeting requirements, as amended by the act. Similarly, the act makes an
application insufficient if its applicant fails to receive approval of a required public
participation report.
Decision Timeframe. Prior law prohibited DEEP or the Siting Council from
acting on a permit, certificate, or approval within 60 days after the informal public
meeting. The act (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 act 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 act’s new required regulations (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’ adoption, and the act does not set a
deadline for doing this.
Under the act, 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 act
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 act 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.
The act 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
O L R P U B L I C A C T S U M M A R Y
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The act 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 do this only 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 the Siting Council determines.
For DEEP, the determination must be made in accordance with the new
regulations the act requires; for the Siting Council, the determination may be made
according to them.
Continuing Operations
The act 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.
BACKGROUND
Affecting Facilities
By law, an “affecting facility” is generally any:
1. electric generating facility with a capacity of more than 10 megawatts;
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 O L R P U B L I C A C T S U M M A R Y
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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 Community 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).
Related Act
PA 23-205 (§ 191) creates a process under which an elector or voter in a town
with a population of up to 10,000 can petition for a town referendum on the DEEP
commissioner’s denial of a facility permit under this law.