Minutes of the May 6, 2015 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room on the fifth floor of 79 Elm Street in Hartford.
PRESENT: Susan Merrow (Chair), Janet P. Brooks, Lee Dunbar, Karyl Lee Hall, Alison Hilding, Michael Klemens, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst)
At 9:31 AM, Chair Merrow noted that a quorum was present and convened the meeting.
Chair Merrow asked that the agenda be considered and approved. Hall made a motion to approve the agenda that was seconded by Dunbar and unanimously approved.
Chair Merrow asked for a motion to approve the minutes of the March 25, 2015 meeting. Dunbar moved approval, Brooks seconded, and all voted in favor except Klemens who abstained because of absence at the meeting and Hilding who had not yet arrived.
Chair’s Report
Chair Merrow reported that she had three meetings with key legislators regarding the Council’s budget for 2016. She also noted that many advocacy groups had included among their legislative priorities the retention of the Council as an independent entity with staff, and that their advocacy had been influential.
Citizen Comment Period
Chair Merrow recognized Mr. John Bialowans of East Lyme. Brooks announced that she is representing Mr. Bialowans and must recuse herself from the discussion. Klemens said he must also recuse himself because the issue involves the Siting Council and he joined Brooks in the audience. Mr. Bialowans spoke of how his property has been damaged by runoff and soil deposition into streams and wetlands as a consequence of erosion from the solar farm near his land. He brought photos to document the damage and reported on elevated stream temperatures that were a result of stream alteration He described attempts made to get the Siting Council and the town to address the problem.
Hall asked about the approval process at the town and how the town communicates with the Siting Council. Wagener said that normally a project of this sort would not be subject to town approval since jurisdiction on approval rests solely with the Siting Council. He said that it was subject to a permit for stormwater associated with construction, a general permit issued by the Department of Energy and Environmental Protection (DEEP). He noted that DEEP recommended monthly reports and the Siting Council did not include this requirement in its order to the owners. Hearn added that the town believes it has enforcement authority because the construction caused damage to offsite wetlands. The fact that construction was going on under Siting Council order and DEEP permit is irrelevant and does not negate the town’s authority. He said the town issued a cease and desist order. Hearn said that the engineering was reviewed by DEEP and by the Siting Council. None predicted the consequences that occurred. Margaret Miner spoke from the audience to say that this is further evidence of the need for a new state storm water management manual that takes into account the changing climatic conditions. Discussion followed regarding how such a situation could occur and what would have prevented it. Hearn said that there have been site visits by DEEP and Siting Council staff and that DEEP issued a Notice of Violation (NOV) for stormwater violations. He said that in April there was a plan in the works for remediation. Mr. Bialowans said the remediation offered is still subject to negotiation. He also noted that another project in his town that had stormwater-related problems was fixed much more rapidly.
Discussion turned away from the specifics of Mr. Bialowans’ problem to the question of solar installations in general. Klemens said that it is a mistake to think that solar energy projects are environmentally benign. They are large impervious surfaces that are installed over vast areas and can damage wildlife habitats. Klemens and others also stated that it was long past time that developers should be able to use the excuse that a heavy rain was unexpected when they are entirely predictable.
Discussion followed on the role that could be played by DEEP and by the Siting Council to prevent such miscalculations in the future. Among the points discussed were treating petitions for such projects more like traditional applications, requiring more reporting or stricter enforcement of violations and updating the state’s stormwater control manual to take into account new precipitation patterns. It was decided to continue to study this issue with an eye toward recommendations on all of these points. Dunbar added that there was no point to adding permit conditions if they were not enforceable; responsibilities must be clarified going forward.
Chair Merrow thanked Mr. Bialowans very much for coming to the Council and promised the Council would look into the issue further.
DEEP’s New E-filing and Docket Management System
Janice Deshais, Director of DEEP’s Office of Adjudications and Brendan Schain, the office’s staff attorney introduced themselves. They presented a preview of the new system for managing and displaying documents and public comments in contested cases. It is based on the platform used by the Public Utility Regulatory Authority (PURA). Using PowerPoint they showed how the system will look to the public on DEEP’s website. It will allow searches by category, date, geography or by proper names. It also will allow the public to submit testimony online and to receive automatic updates. In addition to greater transparency, it will save staff time by ending the necessity of copying and transmitting documents in response to individual requests.
Klemens noted that the public is often under the misconception that their testimony will be given weight by the hearing officer, and perhaps the website could clarify the true status of unsworn testimony. Hall also commented. Ms. Deshais explained that the online filing and tracking software changes nothing about the existing hearing process. She said she has duty to “qualify” testimony by asking for credentials to separate opinion from expertise. She said that an expert who testifies must be available for cross examination. However, she said, public comments that are not sworn can play a very important role in framing the questions of the hearing officer. In a recent case, all of the questions raised in unsworn comments were put to the applicant by the hearing officer, and addressed in that way; public comments are important. Klemens said this distinction is important and needs to be made clear on the new website. Director Deshais said the new tracking software will be accessible from a link on the existing website, where the rules of practice can be found.
In response to a question from Hilding, Mr. Schain explained that oral testimony will not be on the new site. Oral comments are not transcribed except when parties pay for such transcription. If a person desires their testimony to be on the website, a written summary can be submitted; even paper copies will be scanned.
Responding to a question from Wagener, they said the site will be suitable for viewing on mobile devices, with the same accessibility as the regular website. Brooks expressed concern that if the system went down, there could be a problem meeting a deadline for submission of documents. She was told that the phone numbers of the hearing officers are on the website, and that in such a case they could be called to inform them that the system was not working. Mr. Schain said the site will have the same reliability and security as other state websites.
Chair Merrow asked when the new system will be up and running. They said the rollout will be in about a year, after extensive testing. Ms. Deshais said that they will turn to revising the Rules of Practice when the new system is in place. Chair Merrow thanked Director Deshais and Attorney Schain for their presentation.
Remediation and Water Supply in Tylerville
Chair Merrow rearranged the agenda slightly and invited Melissa Schlag, First Selectman of the town of Haddam and Sharon Botelle, resident of the Tylerville section of Haddam, to update the Council on the contamination situation there. Ms. Botelle began by expressing her frustration that for 33 years residents of Tylerville have had a contaminated water supply. Despite the efforts of state government the contamination situation remains virtually unchanged. Chair Merrow asked Wagener to briefly recount the history of the Council’s involvement in this case. Wagener said that when citizens first brought this to the CEQ they said that it would provide a good example of how remediation can be delayed indefinitely, and they were correct. The Council has investigated the reasons for the delays and informed several commissioners and two governors of the facts. When the case against a potential polluter finally went to court, the Council’s role was more limited, though it has participated in meetings regarding water supply and continues to monitor the situation.
First Selectman Schlag briefly recounted the history of the issue which goes back to 1982 when the Commissioner of DEEP (then DEP) referred a factory site, which had used TCE in its manufacturing process, to the Attorney General for enforcement action. Though TCE was used by other facilities in the area in small quantities, she reported that the manufacturer in question used about 8,000 gallons annually for a decade or more. Decades passed before DEEP took up the case again and ordered a study of the site. By 2010 there had not been a study or cleanup of the site. Residents were being provided drinking water at state expense. The site owner was fined. DEEP sought a judgment and a court ordered a study of the location. The study is due in December 2015. Simultaneously DEEP has been conducting its own study of the area around the factory site and has preliminary results that point to it as the most probable source. The owner has requested an extension of the deadline, claiming financial hardship. The concern of the residents is that a delay will be granted in a process that has already spanned thirty years. They also expressed skepticism that there is a financial hardship because the site owner has many tenants and properties.
First Selectman Schlag said DEEP staff is doing great work, especially with regard to its investigation of the entire Tylerville geology. She said they were asking for three things: no further extensions, a requirement that a complete and adequate study be performed by the LEP, and provide any help necessary to DEEP in its pursuit of a resolution.
First Selectman Schlag stated that Licensed Environmental Professionals (LEPs) have a duty to the public, quoting from the relevant statute, and they take an oath to investigate all potential sites of pollution, and at this point in the site study a key potential locus of contamination remains unexamined for volatile organic contaminants. She inquired if at some point in the process the state could take the responsibility for the investigation away from the LEP hired by the owner and substitute its own investigators. In response to a question from Hilding about DEEP’s authority to require investigation of specific parts of the property, First Selectman Schlag said she was told by DEEP staff that it may make recommendations to the LEP.
Dunbar said that if a solution that provides clean water can be arrived at then DEEP’s interest could wane. First Selectman Schlag said that the nearest public water supply is in the town of Chester. The estimated cost of bringing water from there, even with limited state assistance that might be available, would still cost the town three to four million dollars, which is beyond the capability of the town. In response to a question from Hilding, Wagener said that the Connecticut Water Company would be the supplier, but that not everyone is certain that it has sufficient excess capacity to meet the additional demand. Klemens asked if other funding sources could be found through fines or asset seizure, especially in light of the public money spent to date. There was discussion of many of these points.
Chair Merrow noted the presence of Robert Bell, Assistant Director of DEEP’s Remediation Division, in the audience. She asked if he would like to contribute to the discussion. He said he would be happy to answer any specific questions the Council had. Chair Merrow asked if the documents that will be submitted in support of the financial hardship claim, which are due by May 13, will be available to the public. Mr. Bell said that he was uncertain of the answer.
Hall asked what recourse is there should the owner not comply with the mandated deadline for completion of the schedule. Mr. Bell said that is difficult to answer since it would depend on what provisions of the orders are not complied with. He added that the ultimate remedy could be dependent on the extent of the damage as determined by the investigations. If the pollution is beyond remediation the only practical remedy could be providing potable water. Wagener added that this case might be instructive with regard to whether a site that is under orders to remediate should be in a different category with regard to LEPS than a site that is being studied as part of a voluntary remediation. Hilding added that there have been cases before the Council where professionals appeared to have acted unethically with no consequent sanction.
In response to questions from Council members, Mr. Bell confirmed that extensions for hardship have been granted in the past, the Commissioner will make the decision regarding whether there is a financial hardship, and there are no regulations governing the determination process. Hall suggested that if there are no regulations, then it is appropriate for the Council to weigh in.
Chair Merrow expressed her appreciation to First Selectman Schlag and Sharon Botelle for updating the Council on this matter and to Mr. Bell for his explanation of the legalities of the situation, and that the Council would continue to work on this.
Executive Director’s Report
Wagener said that staff had made two changes to the website’s annual report to include fourth quarter data for 2014, which had not been available at the time of publication. This was for the charts on energy efficiency and residential solar installations.
He reported that the Appropriations Committee of the legislature voted to retain the Council in its current status as independent and fully funded. He said the Committee also restored much of the funding where cuts had been proposed to the budgets for DEEP and the Soil and Water Conservation Districts. In an unexpected action it moved the Department of Agriculture’s aquaculture functions to DEEP. He said that the Finance Committee restored about half of the Community Investment Act account funds for next fiscal year.
Wagener mentioned the status of a few other bills, noting that the Blue Plan bill had been adopted by the House unanimously. He said there are proposed land conveyances that are strongly opposed by conservationists. Eric Hammerling, Executive Director of the Connecticut Forest and Park Association, had an op-ed piece in the Hartford Courant on the topic which urged a constitutional amendment to put an end to the practice of legislative transfers of public lands to private and municipal interests.
He said that the agenda of the May 27 Council meeting probably would include several of the issues heard by the Council since January, and also the issue of mining regulation.
Wagener noted the memo prepared by Hearn on the subject of photovoltaic solar panels when they reach the end of their useful lives, which had been a question raised at the previous meeting. In answer to a question from an earlier Council meeting about how bat relocations take place, Wagener said that the most common method is the employment of exclusion devices that allow the animals to leave but make it virtually impossible to re-enter.
Review of State Agency Actions
Wagener said that staff had begun to study the adequacy of review of impacts to the state’s cultural resources associated with stormwater permits, the subject of a presentation to the Council in February. He said the three points that require exploration are the adequacy of review of cultural resources, the adequacy of information available to the public and the consequences for providing inaccurate information in applications or registrations (a broader topic than just cultural resources).
Wagener said staff recommended no action on cell tower applications in Bethel, Monroe and Plymouth.
Wagener said that while investigating compliance with permit reporting requirements for a University of Connecticut road project, staff discovered that reports were not being sent to DEEP as required. A similar inquiry was made regarding another permitted construction activity, with a similar result. He said that DEEP had responded to that problem by revising its permits to no longer require submittal of the reports. Hall suggested that the cure to the problem of reports not being submitted or reviewed would be to have them submitted online and accessible to anyone from the public who is interested. Wagener asked if this is an item the Council wishes to address and it was agreed that it is.
Citizen Complaints
Wagener reported that the bright orange boom that blocked public access to a canal in the Connecticut River in Haddam will be removed as a consequence of an agreement by DEEP and the landowner. The immediate complaint thus has been resolved, though procedural questions might remain. He said that work is progressing on Silver Sands State Park based on the EIE for the project which was published in 1993; Klemens said that the shelf life for an environmental impact statement is generally recognized to be ten years, especially with regard to biological resources.
Wagener concluded with an update on the Glastonbury boathouse and boat launching facility, for which the Council recommended to DEP in 2010 that an EIE be completed prior to construction. Following construction, the land is sliding toward the river, and the facility cannot be open to the public. DEEP has issued emergency authorization for riprap extending fifty feet into the river to stabilize the shore in an attempt to halt the slide. Hartford Courant columnist (and geologist) Robert Thorson stated in a recent column that this and similar problems can be avoided when land use decisions are guided by science rather than politics.
At 12:11 PM, Klemens made a motion to adjourn that was seconded by Hall, and the meeting was adjourned.