Substitute Senate Bill No. 1147
Public Act No. 23-202
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 Section 22a-20a of the general statutes is repealed and the
following is substituted in lieu thereof (Effective October 1, 2023):
(a) As used in this section:
(1) "Environmental justice community" means (A) a United States
census block group, as determined in accordance with the most recent
United States census, for which thirty per cent or more of the population
consists of low income persons who are not institutionalized and have
an income below two hundred per cent of the federal poverty level; or
(B) a distressed municipality, as defined in subsection (b) of section 32-
9p;
(2) "Affecting facility" means any (A) electric generating facility with
a capacity of more than ten megawatts; (B) sludge or solid waste
incinerator or combustor; (C) sewage treatment plant with a capacity of
more than fifty million gallons per day; (D) intermediate processing
center, volume reduction facility or multitown recycling facility with a
combined monthly volume in excess of twenty-five tons; (E) new or Substitute Senate Bill No. 1147
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expanded landfill, including, but not limited to, a landfill that contains
ash, construction and demolition debris or solid waste; (F) medical
waste incinerator; or (G) major source of air pollution, as defined by the
federal Clean Air Act. "Affecting facility" shall not include (i) the portion
of an electric generating facility that uses nonemitting and nonpolluting
renewable resources such as wind, solar and hydro power or that uses
fuel cells, (ii) any facility for which a certificate of environmental
compatibility and public need was obtained from the Connecticut Siting
Council on or before January 1, 2000, or (iii) a facility of a constituent
unit of the state system of higher education that has been the subject of
an environmental impact evaluation in accordance with the provisions
of sections 22a-1b to 22a-1h, inclusive, and such evaluation has been
determined to be satisfactory in accordance with section 22a-1e;
(3) "Meaningful public participation" means (A) residents of an
environmental justice community have an appropriate opportunity to
participate in decisions about a proposed facility or the expansion of an
existing facility that may adversely affect such residents' environment
or health; (B) the public's participation may influence the regulatory
agency's decision; and (C) the applicant for a new or expanded permit,
certificate or siting approval seeks out and facilitates the participation
of those potentially affected during the regulatory process; [and]
(4) "Community environmental benefit agreement" means a written
agreement entered into by the chief elected official or town manager of
a municipality and an owner or developer of real property whereby the
owner or developer agrees to develop real property that is to be used
for any new or expanded affecting facility and to provide financial
resources for the purpose of the mitigation, in whole or in part, of
impacts reasonably related to the facility, including, but not limited to,
impacts on the environment, including, but not limited to, air quality
and watercourses, quality of life, asthma rates, traffic, parking and
noise; Substitute Senate Bill No. 1147
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(5) "Council" means the Connecticut Siting Council;
(6) "Department" means the Department of Energy and
Environmental Protection;
(7) "Environmental or public health stressor" means any source of
environmental pollution that causes a potential public health impact;
(8) "Major source" means (A) a major source of air pollution, as
defined by the federal Clean Air Act or rules or regulations adopted by
the department, or (B) an affecting facility that directly emits, or has the
potential to emit, one hundred tons per year or more of any air pollutant
or other applicable criteria set forth in the federal Clean Air Act; and
(9) "Permit" means any individual facility permit, license, certificate
or siting approval issued by the department or council to a facility that
establishes the regulatory and management requirements for a
regulated activity pursuant to section 16-50k, 22a-174, 22a-208a or 22a-
430. "Permit" does not include (A) any authorization or approval
necessary to perform a remediation conducted in accordance with the
regulations established pursuant to section 22a-133k; or (B) any
authorization or approval required for an extension of time to complete
construction of a facility.
(b) (1) Applicants who, on or after January 1, 2009, seek to obtain any
certificate under chapter 277a, a new or expanded permit, except for a
minor modification of an existing permit for an affecting facility, or
siting approval from the Department of Energy and Environmental
Protection or the Connecticut Siting Council involving an affecting
facility that is proposed to be located in an environmental justice
community or the proposed expansion of an affecting facility located in
such a community, shall (A) file an assessment of environmental or
public health stressors and a meaningful public participation plan with
such department or council and shall obtain the department's or Substitute Senate Bill No. 1147
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council's approval of such public participation plan prior to filing any
application for such permit, certificate or approval except an applicant
for an expanded permit shall not be required to file such an assessment;
[and] (B) consult with the chief elected official or officials of the town or
towns in which the affecting facility is to be located or expanded to
evaluate the need for a community environmental benefit agreement in
accordance with subsection (d) of this section; and (C) except for
applicants for an expanded permit, submit and receive approval of a
public participation report that shall include, but not be limited to, (i) an
affidavit that the applicant satisfied the requirements of subdivisions (2)
to (5), inclusive, of this subsection; (ii) all written comments received;
and (iii) responses to concerns and questions presented in such written
and verbal comments, including any changes to the activity or affecting
facility proposed. Each assessment of environmental or public health
stressors prepared pursuant to this subsection shall contain an
assessment of the potential environmental and public health stressors
associated with the proposed new affecting facility, as applicable, and
shall identify any adverse environmental or public health stressors that
cannot be avoided if the permit is granted, and the environmental or
public health stressors already borne by the applicable environmental
justice community. The filing of an assessment of environmental or
public health stressors shall not be required until regulations are
adopted pursuant to subsection (f) of this section.
(2) Each such meaningful public participation plan shall contain
measures to facilitate meaningful public participation in the regulatory
process and a certification that the applicant will undertake the
measures contained in the plan. Such plan shall identify a time and place
where an informal public meeting will be held that is convenient for the
residents of the affected environmental justice community. In addition,
any such plan shall identify the methods, if any, by which the applicant
will publicize the date, time and nature of the informal public meeting
in addition to the notice by mail required by subdivision (3) of this Substitute Senate Bill No. 1147
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subsection and the publication required by subdivision [(3)] (4) of this
subsection. Such methods shall include, but not be limited to, (A)
posting a reasonably visible sign on the proposed or existing affecting
facility property, printed in English, in accordance with any local
regulations and ordinances, (B) posting a reasonably visible sign,
printed in all languages spoken by at least fifteen per cent of the
population that reside within a one-half of a mile radius of the proposed
or existing affecting facility, in accordance with local regulations and
ordinances, [and] (C) notifying local and state elected officials, in
writing, and (D) posting on electronic media, including, but not limited
to, relevant Internet web sites and social media platforms, provided
such notice is readily found by searching for the name of the affecting
facility on the Internet. Such methods may include notifying
neighborhood and environmental groups, in writing, in a language
appropriate for the target audience. The determination of the percentage
of persons that speak a language, for purposes of subparagraph (B) of
this subdivision, shall be made in accordance with the most recent
United States census.
(3) Not less than thirty days prior to the informal public meeting, the
applicant for a new proposed affecting facility, other than an applicant
for an expanded permit, shall send a notice of such informal public
meeting by mail to all residential households located within a one-half-
mile radius of the proposed or existing affecting facility. Such notice
shall provide the date, time and location of such meeting, a description
of the proposed affecting facility, a map indicating the location of the
affecting facility, information on how an interested person may review
project documents, including any complete needs assessment,
alternatives assessment, environmental impact analysis or assessment
of environmental or public health stressors, addresses for mailed and
Internet-based submission of written public comments and any other
information deemed appropriate by the department or council. The
applicant shall provide such notice in writing in all languages spoken Substitute Senate Bill No. 1147
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by not less than fifteen per cent of the population that resides within
such one-half-mile radius of the proposed or existing affecting facility.
Such applicant shall subsequently send notice by mail to all such
residential households of any subsequent public participation
opportunities that occur as part of the permit approval process before
the department or council, and notify such residential households of any
notice of tentative or final determination by the department or council.
[(3)] (4) Not less than ten days prior to the informal public meeting
and not more than thirty days prior to such meeting, the applicant shall
publish the date, time and nature of the informal public meeting with a
minimum one-quarter page advertisement in a newspaper having
general circulation in the area affected, and any other appropriate local
newspaper serving such area, in the Monday issue of a daily publication
or any day in a weekly or monthly publication. Such advertisement shall
include information on how an interested person may review project
documents, including any complete needs assessment, alternatives
assessment, environmental impact analysis and assessment of
environmental and public health stressors, as applicable. The applicant
shall post a similar notification of the informal public meeting on the
applicant's web site, if applicable.
[(4)] (5) At the informal public meeting, the applicant shall make a
reasonable and good faith effort to provide clear, accurate and complete
information about the proposed affecting facility or the proposed
expansion of [a] such facility and the potential environmental and
health impacts of such affecting facility or such expansion. The applicant
shall accept written comments, submitted via mail or electronic mail,
and oral comments from any interested party, and provide an
opportunity for meaningful public participation at the informal public
meeting. Not later than thirty days after such informal public meeting,
the applicant, other than an applicant for an expanded permit, shall
submit to the department or council a public participation report, as Substitute Senate Bill No. 1147
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described in subdivision (1) of this subsection. The applicant shall video
record the informal public meeting and submit the recording to the
department or council with the public participation report, as
applicable.
[(5)] (6) The Department of Energy and Environmental Protection or
the Connecticut Siting Council shall not take any action on the
applicant's application for a permit, license, certificate or approval
earlier than sixty days after the informal public meeting or the date the
department or council approves the public participation report,
whichever date is earlier. For any such application filed on or after
November 1, [2020] 2023, if the applicant fails to undertake the
requirements of [subparagraphs (B) to (D), inclusive, of subdivision (2)
of this subsection or subdivision (3) or (4) of] this subsection, any such
application shall be deemed insufficient. The application of an applicant
who fails to receive approval of any required public participation report
by the department or council, as applicable, shall be deemed
insufficient.
[(6)] (7) In the event that the Connecticut Siting Council has approved
a meaningful public participation plan or public participation report, as
applicable, concerning a new or expanded proposed affecting facility, as
applicable, and an informal public meeting has been held in accordance
with this subsection, the Department of Energy and Environmental
Protection may [approve such plan and] waive the requirement that an
additional informal public meeting be held in accordance with this
subsection.
(8) In addition to any other fee authorized by law, rule or regulation,
the department or council, as applicable, may assess each permit, license
or certificate applicant a reasonable fee in order to cover the costs
associated with the implementation of this section, including all costs to
provide technical assistance to permit applicants and environmental
justice communities to comply with the provisions of this section. Substitute Senate Bill No. 1147
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(c) Any municipality, owner or developer may enter into a
community environmental benefit agreement in connection with an
affecting facility. For any application filed on or after November 1, 2020,
for such an affecting facility that: (1) Requires a certificate under chapter
277a, or (2) constitutes a new or expanded permit, except for a minor
modification or improvement of an existing permit for such facility, or
siting approval from the Department of Energy and Environmental
Protection or the Connecticut Siting Council involving an affecting
facility, and that is proposed to be located in an environmental justice
community or [is proposed to be] the proposed expansion of an
affecting facility to be located in such a community, the applicant shall
enter into such an agreement with the municipality if there are five or
more affecting facilities in such municipality at the time such application
is filed. The Commissioner of Energy and Environmental Protection
shall not issue a notice of tentative determination regarding a new or
modified permit unless the applicant has submitted a copy of the
executed agreement with the municipality. Mitigation may include both
on-site and off-site improvements, activities and programs, including,
but not limited to: Funding for activities such as environmental
education, diesel pollution reduction, electric vehicle charging
infrastructure construction, establishment of a wellness clinic, ongoing
asthma screening, provision of air monitoring performed by a
credentialed environmental professional, performance of an ongoing
traffic study, watercourse monitoring, construction of biking facilities
and multi-use trails, staffing for parks, urban forestry, support for
community gardens or any other negotiated benefit to the environment
in the environmental justice community. Prior to negotiating the terms
of a community environmental benefit agreement, the municipality
shall provide a reasonable and public opportunity for residents of the
potentially affected environmental justice community to be heard
concerning the requirements of or need for, and terms of, such
agreement. Any mitigation contained in such an agreement shall have a
nexus to the impacts caused by the proposed facility and shall be Substitute Senate Bill No. 1147
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proportional to such impacts.
(d) The chief elected official or town manager of a municipality shall
participate in the negotiations for any such community environmental
benefit agreement and shall implement, administer and enforce such an
agreement on behalf of the municipality, provided any such agreement
negotiated pursuant to this section on and after November 1, 2020, shall
be approved by the legislative body of the municipality prior to
implementation, administration and enforcement of such agreement.
Such chief elected official or town manager shall select a resident of the
potentially affected environmental justice community to participate in
such negotiations.
(e) The terms of any community environmental benefit agreement
negotiated, entered into and approved in accordance with this section
on and after November 1, 2020, shall not constitute a separate and
distinct basis for a pleading to intervene in any administrative, licensing
or other proceeding pursuant to section 22a-19.
(f) The Commissioner of Energy and Environmental Protection shall
adopt regulations, in accordance with the provisions of chapter 54, as
are necessary and proper to carry out the purposes of this section. The
provisions of subsection (g) of this section shall not take effect until the
adoption of the regulations pursuant to this subsection. Such
regulations shall include, but not be limited to, provisions regarding: (1)
Procedures and requirements for creating the meaningful public
participation plan and the public participation report required by this
section; (2) the identification and measurement of the relative impact of
environmental and public health stressors across communities; (3) tools
for stakeholder industries and sectors to use that take account of any
such environmental or public health stressors, including tools to help
inform decisions about potential locations for proposed affecting
facilities that comply with the provisions of this section; and (4)
standards for denying or placing conditions on permits. The Substitute Senate Bill No. 1147
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commissioner shall consult with stakeholder industries and sectors
when developing the regulations pursuant to this section.
(g) (1) On and after the adoption of regulations pursuant to
subsection (f) of this section, the department's review of any such
application for a proposed affecting facility, other than an application
for an expanded permit, shall be conducted in accordance with any such
regulations, as applicable, and the council's review of any such
application may be conducted in accordance with any such regulations.
(2) The department or the council, as applicable, may deny any
application for a permit for a proposed affecting facility, other than an
application for an expanded permit, upon a finding that approval of the
permit, as proposed, would, together with other environmental or
public health stressors affecting the applicable environmental justice
community, result in adverse cumulative environmental or public
health stressors in such environmental justice community that are
higher than those borne by other communities within the state, county
or other geographic unit of analysis, as determined by the department
or council. Any such determination by the department shall be made in
accordance with the applicable regulations adopted pursuant to
subsection (f) of this section and any such determination by the council
may be made in accordance with such regulations.
(3) If such permit for a proposed affecting facility, other than a permit
for an expanded facility, is granted, the department or council, as
applicable, may impose reasonable conditions on the construction and
operation of the proposed affecting facility that are intended to mitigate
environmental and public health impacts.
(4) The department or the council, as applicable, shall provide notice,
in writing, to any applicant for any such proposed affecting facility of
any tentative determination regarding compliance with the applicable
regulations adopted pursuant to subsection (f) of this section. Substitute Senate Bill No. 1147
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(5) If any hearing is held on any application subject to the
requirements of this section, compliance with the applicable regulations
adopted pursuant to subsection (f) of this section shall be considered at
such hearing.
(6) The department or council, as applicable, shall publish any
determination made pursuant to this subsection to the department's or
council's Internet web site.
(h) Notwithstanding any provision of the general statutes, the
department or council, as applicable, may, after review of the public
participation report and any other relevant information, including
testimony and written comments received in connection with the
meaningful public participation plan, apply reasonable conditions to a
new permit for an affecting facility, other than a permit for an expanded
facility, concerning the construction and operation of the facility to
protect the environment and public health, upon a finding by the
department or council, as applicable, that approval of such permit, as
proposed, would, together with other environmental or public health
stressors affecting the applicable environmental justice community,
result in adverse cumulative environmental or public health stressors in
such environmental justice community that are higher than those borne
by other communities in the state, county or other geographic unit of
analysis, as determined by the department or council. Any such
determination by the department shall be made in accordance with the
applicable regulations adopted pursuant to subsection (f) of this section
and any such determination by the council may be made in accordance
with such regulations.
(i) If a permit applicant applies for more than one new proposed
affecting facility, the permit applicant shall only be required to comply
with the provisions of this section once, unless the department or
council, as applicable, determines that more than one informal public
meeting is necessary due to the complexity of the permit applications Substitute Senate Bill No. 1147
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necessary for the proposed affecting facility. Nothing in this subsection
shall be construed to limit the authority of the department or council to
hold or require any public hearing, as may be required by any other
provision of the general statutes, federal law or rule or regulation.
(j) Nothing in this section shall be construed to limit the right of an
applicant to continue facility operations during the process of permit
approval to the extent such right is conveyed by an applicable law, rule
or regulation. Nothing in this section shall be construed to apply to
permit renewals or permit modifications.