Newsletter01.24.2019

2019 Connecticut Environmental Legislative Update No. 3

by Christopher P. McCormack

Welcome to our Environmental Legislative Updates.

Throughout Connecticut’s legislative session, these updates highlight developments concerning environmental law and policy. The author prepares updates as Legislative Liaison of the Connecticut Bar Association’s Environmental Law Section. Pullman & Comley is pleased to offer them in this format to a wider audience.

As the session proceeds, early updates will alert readers to proposals on a broad range of issues concerning the environment, narrowing focus over time on bills that continue to progress, and concluding with a post-session wrap-up of bills that pass as well as noteworthy also-rans. Along the way they’ll summarize and challenge arguments pro and con, examine the policy and science behind proposals, and occasionally cast a side glance at the vicissitudes and vagaries of the process. The views expressed will be the author’s own, not necessarily those of Pullman & Comley LLC.

Questions, comments, requests and suggestions are always welcome. Please email me at cmccormack@pullcom.com.

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We envy those courageous souls who declare email bankruptcy, dispatching the inbox to the recycle bin and sending a blast message to the whole contact list saying, “I gave up trying to keep track and deleted everything – if you want a response to something, re-send it.” Like any good revenge fantasy, it feels good to think about it even if we’d never do it ourselves.

The sheer volume of new bills in the early part of the legislative session puts us in mind of taking some similar tack. We remain at our post nevertheless, bound not only by dedication to duty but also by want of imagination and initiative. Like Jell-O®, there’s always room for the bonus legislative update. But first, the vegetables.

SB 47: ban sale or use of goods or building materials containing asbestos.

HB 5395 proposes to amend Conn. Gen. Stat. §22a-20a, the environmental justice statute, “to improve assistance to distressed municipalities” of coping with the environmental effects of “affecting facilities” – the statutory category of site uses that have adverse effects, see Section 22a-20a(a)(2).

Impatience with administrative agencies is a fertile source of legislative proposals. In the environmental context, bills a few sessions back set the gold standard by proposing to eliminate the Connecticut Department of Energy and Environmental Protection outright. Some bad experience or other is presumably behind HB 5400 proposing to eliminate the Transfer Act, and HB 5307 proposing to undo the union of DEEP and the Public Utility Regulatory Authority, the successor to the Department of Public Utility Control that put the second “E” in “DEEP.” It surprises us not at all to learn that some are willing to bid the Transfer Act adieu. We were not aware of DPUC revanchism.

Speaking of administrative law, the Department of EEP may have company in exciting the ire of regulated parties by applying policies as if they were regulations. HB 5391 implies that the honor goes also to the Aquaculture Bureau in the Department of Agriculture: the bill would require any regulation of shellfish leases to be duly adopted after notice-and-comment rulemaking under the UAPA.

In today’s batch, several on nuisance waste: eliminate single-use Styrofoam containers (HB 5384), plastic straws (HB 5385), single-use plastic bags (HB 5396; also HB 5398), and release of helium-filled balloons into the atmosphere (HB 5314). Those paper bag hot air things with candles are probably okay. And speaking of nuisances, HB 5387 and HB 5397 both propose to bring nip bottles within the “bottle bill” redemption framework - HB 5387 by means of a five cent redemption fee, which would make the idea of nip bottles even more humiliating than it already is.

Non-nuisance waste: HB 5392 proposing a cost/benefit analysis on converting sewage sludge from wastewater treatment facilities into soil usable for farming. The “statement of purpose” refers to the stuff as “biosolids” and we have to agree some rebranding is probably in order. Join that with the GMO labeling rules and you've got a catchy slogan: “Bioengineered – Grown with Biosolids!” As Stew Leonard, Jr., might say, “Throw in a bottle of wine and I’m comin’ over.”

One idea that’s been floated as a way to reduce the volume of solid waste is to charge for disposal on a unit cost basis – “pay as you throw.” That would have to happen at the local level, but the idea evidently doesn’t please all the people all the time: HB 5402 would prohibit DEEP from even “encouraging” municipalities to adopt it.

A pair on Siting Council issues. HB 5318 would require local representation in consideration of projects. HB 5319 proposes a task force to evaluate residential impact of Siting Council decisions relating to Eversource applications. Another symptom of a bad experience?

Another interesting pair: HB 5308 and HB 5312 relate to tree trimming, respectively, by the Department of Transportation along highways, and by utilities in utility protection zones on private property. 5308 would require DOT to develop guidelines for vegetation management and tree removal, subject to exemptions for situations presenting an immediate public hazard, and to report annually concerning funds allocated for vegetation management. 5312 would dictate terms of notice, allow the property owner to request an evaluation by the town tree warden or town arborist, and require a customer satisfaction survey in a form that can be “torn off [angrily, we’d guess] and sent to PURA.” Where it will surely receive serious consideration, assuming PURA isn’t the DPUC again by then.

We have another proposal on fracking waste – HB 5317, again to make the moratorium a permanent ban.

Remember running bamboo? HB 5316 does, and it thinks Conn. Gen. Stat. §22a-381e ought to provide for an increased penalty for violating planting restrictions, a greater setback distance, and a requirement to remove plantings that don’t conform to the setbacks.

We will not even attempt to summarize all the hunting and parks bills. Based on the sheer volume of proposals, however, we feel we should mention that many of our elected representatives see room for improvement in the “passport to the parks” fees on motor vehicle registration.

A couple for outdoorspersons. HB 5315 would require kayak, canoe and paddleboard “operators” to wear life vests, not just have them aboard. Look for an amendment requiring sunscreen with an SPF rating appropriate for the day’s UV index. And HB 5304 would authorize pink blaze clothing for hunting. Does this mean hunters are mistaking orange vests for game? Well, if we expand our three hunting seasons by a week each (HB 5309) and allow shotgun and rifle hunting on public and private land in addition to bow hunting on Sundays (HB 5310), maybe pink and orange stripes would be in order. Few hunters are out, we would guess, for Peter Max zebras.

Your Bonus Legislative Update could have been HB 5350, which proposes to increase the penalties for theft of used cooking oil (which is a thing). But we have to go with HB 5415, which we’re sure has the best of intentions in proposing that any state agency adding a new regulatory provision has to repeal three others. Except, bless your heart, each of those three repeals would also be a notice-and-comment rulemaking. If we pour enough gasoline on this fire, it’s sure to go out eventually.

As usual, the Legislative Liaison is open for business in comments, corrections and suggestions.

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