Minutes of the April 25, 2012 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room on the 5th floor of 79 Elm Street, Hartford.
PRESENT: Barbara Wagner (Chair), Janet Brooks, Karyl Lee Hall, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst), Eric Walsh (Intern).
At 9:06 AM Chair Barbara Wagner called the meeting to order, and said she would postpone the Chair’s report and the Executive Director’s report in order to take up the Title V issue, as guests from the Bureau of Air Management of the Department of Energy and Environmental Protection (DEEP) and other interested guests were present.
Review of State Agency Actions
Department of Energy and Environmental Protection’s proposed renewal of Title V air quality operating permit for the South Meadow Station, Hartford – Chair Wagner asked Wagener to recap the issue for which the DEEP representatives were invited. Wagener referred to the memo he had sent prior to the meeting, which summarized the points that the Council had raised regarding the proposed renewal of the Title V air quality permit for the South Meadow “jets” peak-demand power plant in Hartford, which is owned by the Connecticut Resource Recovery Authority (CRRA). Wagener said that the Council recommended a number of modifications as conditions of the permit renewal. He said the guests would address the Council’s recommendations. The guests from the Bureau of Air Management’s Engineering and Enforcement Division were Assistant Director Richard Pirolli, Supervising Air Pollution Control Engineer Kiernan Wholean and Air Pollution Control Engineer Rintra McIntyre.
Mr. Pirolli began by stating that the Title V permit is a consolidation of all the state and federal requirements for such facilities into a single document. The requirements in the permit are derived from the state and federal laws. Title V is not designed to create any new requirements. He said he wished to discuss the Council’s proposals item by item with that understanding.
He said that limiting the permit time period, as recommended by the Council, might be of dubious value because permit holders already would be subject to any new requirements that arise during the normal five-year permit period. Also, applicants must submit their renewal applications a year prior to the expiration of the permit. Consequently, one year after issuance of a two year permit the staff at DEEP would have to begin working again on a permit for the same facility. This could be disruptive of the work cycle at DEEP and could divert resources from other important projects. Wagener suggested that the rationale for the request for a two year permit length would become clearer as the other items were discussed. Hall asked why it was not simpler to issue a permit for a shorter time, if during the five years after issuance the permit might be subject to modifications; Mr. Pirolli said that the process of reopening a permit to insert new requirements is less onerous both for the permittee and the agency than is the full renewal application process.
With regard to the Council’s request for more frequent monitoring, Mr. Pirolli said that monitoring is now done by visual observation of the opacity of the exhaust. The most recent showed five percent opacity; the maximum allowed is 20% opacity. He said the facility is producing only one tenth of the maximum allowance of .2 lbs of particulate emissions per million BTUs. Hall observed that these sound like average values and not peak pollution values. Mr. Wholean confirmed that these figures are averaged over a six-minute time period. He said the tests are required once every five years. Wagener said that automobiles must be emission tested every two years. Mr. Pirolli agreed that a more frequent testing of such units could be beneficial, and DEEP staff have discussed this possibility with CRRA staff. Hall said testing should be done when the facility is running at capacity. Mr. Wholean said they are conducted at 90% (at least) capacity and three separate measurements are made by a probe that is in the exhaust.
Wagener said that the particulate regulation is based on the type of fuel being burned; dirtier fuels are allowed a higher rate of emissions, which gives the operator no incentive to change to a cleaner fuel. He questioned why DEEP allows the use of fuels that will create more pollution than clean fuels. Mr. Wholean said the decision is based on the feasibility and cost of controls. He said that comments from industry and the public are considered when the regulations are adopted; they must be reasonable. Mr. Pirolli added that the federal EPA regulations vary emission rates by fuel source. Sherman stated that the standard should be based on a health standard rather than on the fuel being used. Mr. Pirolli said the ambient air quality standard is set by EPA and is health-based. It is left to the states to determine how to meet the EPA standard. In response to a question from Hall, Mr. Wholean explained that the ambient air quality standards allow for occasional exceedances, without regard to sources. Wagener added that there could be local impacts that are not measured through the state’s ambient air monitoring stations, and that this facility could have a higher local impact than most power plants because there is no stack to disperse the emissions. Hall drew the analogy of the State Implementation Plan (SIP) to a pie, suggesting that a restriction on a dirty source would allow for more generation from a cleaner source. Mr. Pirolli suggested that the SIP was more like the recipe than the pie.
Wagener pointed out that the expired permit limited operation to 168 hours per year, but that the renewal has no such limit. Mr. Pirolli said that DEEP staff was discussing such limits with CRRA staff, as such limits could tie into CRRA’s NOx trading order. With regard to the Council’s recommendation for studying a phase-out of the plant, Mr. Pirolli said that CRRA does not intend to shut down the plant. Chair Wagner said that CRRA receives over five million dollars annually from ratepayers through the Independent System Operator (ISO) to keep this facility available.
Hall suggested that a five-year permit renewal offers no incentive to change this status quo. Brooks asked what would DEEP recommend. Mr. Pirolli said that all actions in the Title V permit must be based on existing laws and regulations. He said a solution may lie with legislative action; there is precedent in legislative action taken to reduce mercury pollution from coal-burning facilities. Mr. Wholean added that there is regulatory authority to require increased monitoring provided the requirement is reasonable and consistent.
Chair Wagner thanked the representatives from DEEP for attending and answering the Council’s questions so thoroughly. Mr. Pirolli said that DEEP is proceeding with the Council’s request for an informational hearing. He said that the Title V permit may not be the appropriate vehicle to address all the pollution concerns that have been raised by the Council. He suggested that there would be value for the Council to meet with CRRA regarding the issue. Wagener asked if DEEP expects a response from CRRA; Mr. Pirolli answered yes, and that he would forward any such response to the Council. Nicole Lugli, Director of the Enforcement Policy and Coordination Office of DEEP spoke from the audience to point out that April 30 could be a key date, as that is when ISO will announce what facilities are available for peak generation.
Natural Heritage, Open Space and Watershed Land Acquisition Review Board – Chair Wagner said that Amy Paterson, Executive Director of the Connecticut Land Conservation Council (CLCC) had requested to speak to the Council to discuss expansion of the duties of the Natural Heritage, Open Space and Watershed Land Acquisition Review Board (Review Board). At this point Janet Brooks recused herself from the discussion because she is an attorney for a member of the Review Board. Ms. Paterson distributed a letter to the Council, and began by explaining the role of the CLCC’s working group that is researching how to protect private and state conservation lands. The CLCC’s working group believes that the Review Board is an underutilized resource and would like to see it strengthened. She asked the Council to consider recommending statutory or administrative changes to strengthen the role of the Review Board. The Review Board meets once yearly, at most, to approve the grants made through the Open Space and Watershed Lands Acquisition Program. Graham Stevens, Director of Constituent Affairs and Land Management at DEEP, spoke from the audience to say DEEP relied on the opinion of the Review Board regarding grants for acquisitions. He said that the Green Plan is the state’s guide for acquisitions, and input from the Review Board would be welcome. Discussion turned to the fact that not all the lands acquired with state grants are protected with conservation easements. Ms. Paterson said personnel at DEEP said that the state may not unilaterally impose restrictions on land without affecting its appraised value. Brooks, speaking on behalf of her client, and not as a member of the Council, said the state receives land with all types of encumbrances and also transfers land with encumbrances. She did not see how a conservation encumbrance is any different. Nor does she believe it would affect the appraised value of the land, citing the legal definition of “appraised value.” Brooks said she would like to see the legislature revive the Review Board with new authority and new appointments.
Chair Wagner thanked Ms. Paterson for her presentation, and said that she would like to see the Council investigate the potential for reviving and expanding the role of the Review Board. Members concurred.
Citizen Complaints
University of Connecticut Hazardous Waste Storage Facility – Chair Wagner noted the presence in the audience of those who had attended last month’s meeting and had asked the Council to investigate the failure of the University of Connecticut (UConn) at Storrs to relocate its hazardous waste storage facility. She asked Wagener to report on what he has learned about this matter. Wagener said that the complaint included an allegation of poor performance by a specific office within UConn. He said the Council can analyze the outcomes of state programs and state agencies, but not the performance of any single employee or office within the agency. He reviewed the specific questions and complaints raised by the citizens. Wagener said that a major misunderstanding is that the 1992 letter from the DEP is not a permit; it is a letter that agrees to assign one EPA registration number to the entire campus instead of assigning multiple numbers. The facility is not required to have a permit provided no material is stored there for more than ninety days. That is why no notice or hearing was required for the facility’s operation. He reviewed the years of letters from citizens, town officials and state agencies urging relocation of the facility to a location outside the drinking water watershed. UConn conducted an Environmental Impact Evaluation (EIE) in 2004, but all of the preferred locations subsequently became unavailable. He was told by UConn officials that most of the acceptable alternative locations were usurped for other uses and the security director vetoed the other one. Now UConn is planning to conduct a new EIE, which will evaluate the existing location and other locations. The April 2012 federal approval of the Record of Decision for the road through the proposed Tech Park potentially opens sites in that area. The citizens’ comments to the Council included an email in which a UConn official proposed conducting the new EIE with the existing location as the preferred alternative.
In response to citizens’ comments about making UConn subject to the same laws as other entities, Wagener said that UConn holds no special exemption from state environmental regulations. However, although it produces drinking water, it and other state agencies are not subject to some of the land use restrictions on watershed lands to which other water companies are subject. Wagener said the Council investigated this in depth and produced a detailed memo in 2002, and he discussed relevant legislation from that time period. Sherman said that this is an unacceptable rationale for a failure on the part of UConn to live up to commitments that go back to 2000, when a master plan for the campus was produced at great expense. He asked how it was possible that other uses could usurp the relocation if there was a master plan to govern location decisions on campus. He added that the current location is not consistent with the state Plan of Conservation and Development. Jean deSmet, Ruth Karl and Tulay Lucian, speaking from the audience, stated their concern that continued use of the present site goes against all prior commitments and analyses, some going back as far as 1992. Kurt Heidinger, speaking from the audience, said UConn is failing in its moral responsibility to honor commitments and protect the public. Sherman said the last EIE evidently was an empty exercise and there must be safeguards to save this one from that fate. Wagener said that once the scoping for the EIE is available the Council will be able to analyze the proposal. Members agreed that staff should urge UConn to move forward with the EIE with the intended purpose of the project to be relocation of the facility to a site outside the watershed.
Enforcement Case in Westbrook – Wagener introduced the complaint, which had been distributed to members in advance, that alleged unusual delays by DEEP in responding to ground water contamination from a gas station in Westbrook. He said it was easy to understand the frustration of the citizens, as years had gone by and their groundwater still was contaminated. He had asked Hearn to review the files in detail, and asked him now to report on his review.
Hearn said that pollution was first discovered there in 1992 during removal and replacement of underground storage tanks. Loose product was discovered in the tank grave. It was de-watered and removed. The inspectors did not recommend continuous monitoring of the site. There is no way of knowing whether there were additional losses of product or if the contamination referenced in the complaint is a result of the first incident. The gas station began voluntarily sending monitoring reports to DEEP in June of 2006. (At that time, DEEP was the Department of Environmental Protection, but DEEP is used throughout these minutes for clarity.) On August 13, 2008 the complainant called DEEP to report the spread of contamination. DEEP personnel called the consultant for the gas station on August 14 and requested the latest monitoring results. On August 28, an inspector from DEEP visited the site. On September 26, a Notice of Violation (NOV) was issued by DEEP. Within a month the attorney for the gas station responded contesting some components of the NOV. The gas station had a consultant prepare a “phase three” study of the site which was finished in April of 2009. Seven months later a remedial action plan had been completed and submitted to DEEP for consideration of options. In 2010 the gas station ownership fired two consultants, hired two consultants and submitted two more remediation plans. In January of 2011 DEEP issued an administrative order to remediate the site.
Hearn said that the evidence shows an attentive response to the complainant’s notification in August of 2008 that there is a problem on the site. From the agency’s point of view it looked as though the gas station was busily engaged in an attempt to remediate in 2009. Prior to 2006, DEEP was unaware of continued pollution on the site because no monitoring data existed. He said he could find no evidence of the collusion that was alleged in the complaint. His review of the draft consent order did not appear to him to show weaker requirements than the original order.
He said that, as a consequence of a lawsuit, the gas station is now under court orders to study and remediate the site. Independent of the suit, DEEP has prepared a consent order with the gas station to accomplish monitoring and remediation. The court has retained jurisdiction over the remediation by the gas station to assure that the environmental concerns at the site are properly addressed. Wagener suggested that the Council should inform the complainant that the Council will continue to watch developments in this case, and members concurred.
Discussion of Annual Report Topics - including staff memo on petroleum’s large burden on state environmental enforcement
Wagener thanked Eric Walsh for the outstanding analysis and report he prepared on enforcement data while an intern for the spring semester. He said he would like to feature some of the report’s conclusions in the annual report. He said that it is clear that monitoring the storage and distribution of petroleum products accounts for more than half of DEEP’s enforcement work. Nicole Lugli, Director of the Enforcement Policy and Coordination Office of DEEP spoke from the audience; she explained why statistics may have been different in the years prior to the study and what differences to expect in future years. She said that enforcement of underground tank regulations will continue to be a major effort. Stage Two Vapor Recovery enforcement will eventually cease as a result of a plan to phase out Stage Two. Members discussed the data, which had been distributed in advance.
Other Business
Brooks alerted the Council to discussions that have been taking place at the General Assembly to revise aspects of the Connecticut Environmental Protection Act. Bill 343 would require that a citizen wishing to intervene in an administrative proceeding allege with specificity the exact nature of the pollution or environmental damage about which the person is concerned. Brooks said this is a very high bar for the layman concerned about adverse consequences of a proposed action. She said the bill would also preclude consideration of prior history of bad environmental behavior. The Council was concerned about the potential effect on citizen intervenors and asked Brooks and Wagener to gather and circulate additional information by email.
There being no other business the meeting adjourned at noon.