Newsletter03.16.2018

2018 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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Posted March 16, 2018

In the rocket launching business, “Max Q” is point of maximum stress due to the combination of acceleration and air density. Judging from the number of items in today’s update, the session may have reached legislative Max Q. At least it feels like there’s a lot of stuff coming at us in a hurry. Inasmuch as the aerodynamic details involve density, however, it seems best not to extend the analogy to the legislative process further. Here now the news.

Starting with a hot item, or at least a hotly contested one, we don our oven mitts to present HB 5454, which follows up on last session’s enactment mandating that DEEP dispose of permit applications within ninety days, and deeming them approved otherwise. It can only have been respect for air quality that stopped DEEP from marching up to the Capitol with torches (so sooty; PM-10 nightmare, really). This session’s bill provides that DEEP will make “best efforts” to review applications within that time (as long as they’re complete), and will at least notify the applicant of deficiencies within the 90 days unless the applicant agrees to give DEEP more time. DEEP has made great strides in restating permit applications in checklist form, so perhaps the completeness qualifier would not materially erode what the bill retains of the ninety-day rule. Most important from DEEP’s perspective, the default alternative of approval would be gone. But that was also most important for the proponents of the version passed last session. We’ll see how this plays out. Just to be safe, though, you might want to stand back.

Actually, put the oven mitts back on. SB 347 is another stab at the idea that DEEP can’t unilaterally revoke consent orders without the, you know, consent of the signatory. As you may recall this proposal is a reaction to DEEP’s doing exactly that a few years ago, prompting no small consternation among those who long considered such orders tantamount to contracts - both enforceable by and binding on both sides. The solution embodied in this bill is no more popular in a certain former insurance company building on Elm Street in Hartford than the ninety-day thing, but if that one could find its way to the finish line, anything’s possible.

HB 5436 is a substantial brownfield bill. Its first part would allow municipalities to enter into tax abatement agreements with prospective purchasers who commit to remediate brownfield properties, an opportunity currently available only to property owners (see Conn. Gen. Stat. § 12-81r(a)). That seems calculated to encourage commitment of new resources to brownfield properties. The second part of the bill would create a system of tax credit vouchers, which would be transferable, and which could be issued as phases of remediation are completed to gain earlier benefit for part of the total credit corresponding pro rata to the share of the remediation completed. And the credits could be carried forward five years. And if there are multiple owners the credit can be allocated pro rata or as the owners agree. Given the innumerable headwinds facing brownfield projects, incentives on the tax side provide a welcome boost – and ought to be easy to justify for municipalities that often as not get bupkis in the way of tax revenue anyway.  As has become customary, this bill comes up through Commerce, not Environment, and the Commissioner to whom it would delegate responsibility is DECD, not DEEP.

The concept of a “residential property assessed clean energy” program returns in HB 5493. Modeled on the existing commercial equivalent, RPACE was greeted last year with enthusiasm on the environmental side and something like horror on the real estate side, the latter based on concern that priority RPACE liens would foul up residential real property financing. The Environmental Law and Real Estate Law Sections tried without success to come up with a consensus position. This bill attempts to map an orderly path through this tangle by sending it off to the Banking Department for study. Wait – that actually makes sense. Are we still in Connecticut?

SB 343 contains two distinct proposals on climate adaptation and resilience issues. One is to expand the emergency planning already required for a facility where chemicals are located (Conn. Gen. Stat. § 22a-610) to cover severe weather, sea level rise and flooding if the facility is in an area identified as being at high risk for those hazards. The other is to create a Climate Justice Working Group within the Governor’s Council on Climate Change.

Having done this for a few years now, we are persuaded that it is an immutable law of the universe that every legislative session will see proposals for every possible type of bottle bill. On your bottle bill bingo card, go ahead and check the boxes for “increase fee for handling at redemption centers” (HB 5457) and “require 25% post-consumer recycled content in plastic bottles” (SB 428).

We previously noted SB 109 as one among a batch of identical bills proposing the general concept of improving natural resource protection by increasing fines for polluting and littering. It returns today as (a) the one bill out of the batch favored with further attention, and (b) a committee-drafted bill. It now takes the form of a proposal to require DEEP to report by January 1, 2019 on the need to increase fines for that purpose. Of course, few significant violations ever draw the full available statutory penalty – which can be many thousands of dollars a day. Are the nominal penalty limits significant?

We don’t ordinarily spend much time in the parks and agriculture portions of the legislative environment portfolio, but there must be a story behind HB 5359 and HB 5361. The former would require regulations concerning shellfish leases to adopted in accordance with notice and comment rulemaking (isn’t that already, um, the law?); the latter (and its Senate counterpart SB 344) would require the Department of Agriculture to adopt regulations for a requirement to monitor shellfish licensees by electronic means. The controversy must involve something other than what occurs to us, which is the practical challenge of putting an ankle bracelet on a clam.

Numerous bills in today’s batch reprise unsuccessful proposals from past years. That’s no reflection on the merits, especially given the bandwidth absorbed by budget issues. Some notables:

  • HB 5329 to ban organohalide flame retardants, or at least prohibit sale of certain items containing them.
  • HB 5349 to require study of permitting farm-based anaerobic digesters – alas, without the “Cow Power” branding of prior bills.
  • HB 5354 re testudinal (look it up) trafficking.
  • HB 5363 to establish a carbon fee to be paid into a dedicated “clean energy and jobs account,” which can never be swept for other purposes. No, really, never, we mean it this time.
  • HB 5364 on the protection of horseshoe crabs.

No bonus update today (come on, this is exhausting), but having brought up the subject of harpoons, it’s only right that we mention SB 426 on removal and forfeiture of abandoned commercial fishing gear in Long Island Sound. In addition to the expected categories of nets and traps and so on, it also refers to “weapons.” To be fair, the statute it amends already said that, but we can’t help ourselves. What other fishing “weapons” are there? From a legislative commentary perspective, we will note that the bill would change the phrase “abandoned or discarded” to “abandoned, derelict or discarded.” It’s not clear “derelict” adds much of substance, but it certainly adds flavor. Fair notice that if the Ghost Ship of the Flying Dutchman drifts into the Sound, he’s going to have one year to claim it.

In view of the sheer volume of new items not summarized above, the usual recommendation to peruse the complete list of blurbs (below) comes with special emphasis. Comments, questions and corrections welcome as always. Best regards to all.

- cpm.

H.B. No. 5329 (RAISED) COMMITTEE ON CHILDREN. 'AN ACT CONCERNING THE USE OF FLAME

RETARDANT CHEMICALS IN CHILDREN'S PRODUCTS AND UPHOLSTERED RESIDENTIAL FURNITURE', to prohibit the sale and distribution of children's products and upholstered residential furniture containing organohalogen flame retardant chemicals. REF. COMMITTEE ON CHILDREN

H.B. No. 5345 (RAISED) ENERGY AND TECHNOLOGY. 'AN ACT CONCERNING LEAD SERVICE LINE REPLACEMENT', to allow water companies to submit lead service line replacement plans to the Public Utilities Regulatory Authority and to allow the authority to authorize cost recovery mechanisms for the replacement of customer lead service liens. REF. ENERGY AND TECHNOLOGY

H.B. No. 5346 (RAISED) ENERGY AND TECHNOLOGY. 'AN ACT CONCERNING THE SALE OF MUNICIPAL WATER SUPPLY AND WASTEWATER UTILITY ASSETS', to create a process for determining the sale price of municipal water supply and wastewater utility assets. REF. ENERGY AND TECHNOLOGY

H.B. No. 5348 (RAISED) ENERGY AND TECHNOLOGY. 'AN ACT MAKING USEFUL THERMAL ENERGY GENERATED FROM BIODIESEL A CLASS I RENEWABLE ENERGY SOURCE AND CREATING A HOMEOWNER-GENERATED USEFUL THERMAL ENERGY PROGRAM', to change the definition of Class I renewable energy source to include certain useful thermal energy generated from biodiesel and to create a homeowner-generated useful thermal energy program. REF. ENERGY AND TECHNOLOGY

H.B. No. 5349 (RAISED) ENERGY AND TECHNOLOGY. 'AN ACT REQUIRING THE STUDY OF THE PERMITTING OF FARM-BASED ANAEROBIC DIGESTERS', to require the Commissioner of Energy and Environmental Protection to study ways to streamline the permitting process for anaerobic digesters. REF. ENERGY AND TECHNOLOGY

H.B. No. 5354 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING SNAPPING TURTLES AND RED-EARED SLIDER TURTLES', to prohibit the sale or trade of snapping turtles and red-eared slider turtles. REF. ENVIRONMENT

H.B. No. 5355 (RAISED) ENVIRONMENT. 'AN ACT ESTABLISHING STANDARDS FOR THE ADEQUACY OF DOG SHELTER DURING EXTREME WEATHER CONDITIONS', to establish certain requirements for what constitutes adequate shelter for a dog during adverse weather conditions. REF. ENVIRONMENT

H.B. No. 5356 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING EMERGENCY ACTION PLANS FOR DAMS', to reduce certain regulatory burdens for municipalities and other dam owners by authorizing the submission of updated pages for emergency action plans rather than requiring entirely new plans. REF. ENVIRONMENT

H.B. No. 5357 (RAISED) ENVIRONMENT. 'AN ACT ESTABLISHING A TAX CREDIT FOR DONATED AGRICULTURAL FOOD COMMODITIES PRODUCED OR GROWN BY THE TAXPAYER', to establish a tax credit for foods grown by farmers and donated to certain charities. REF. ENVIRONMENT

H.B. No. 5358 (RAISED) ENVIRONMENT. 'AN ACT AUTHORIZING BLACK BEAR HUNTING IN LITCHFIELD COUNTY', to authorize the hunting of black bear in Litchfield County. REF. ENVIRONMENT

H.B. No. 5359 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING SHELLFISH LEASES', to require any regulations concerning shellfish leases to be adopted in accordance with the Uniform Administrative Procedure Act and submitted to the General Assembly for approval. REF. ENVIRONMENT

H.B. No. 5360 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING REVISIONS TO CERTAIN ENVIRONMENTAL QUALITY AND CONSERVATION PROGRAMS OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION', to authorize the inclusion of grass clippings for certain leaf composting facilities without solid waste permits and to provide for better tracking of fallow deer populations. REF. ENVIRONMENT

H.B. No. 5361 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE TO REQUIRE CERTAIN ELECTRONIC MONITORING DEVICES FOR AQUACULTURE LICENSEES', to require the Department of Agriculture to adopt regulations for the requirement that shellfish licensees be monitored by electronic monitoring devices. REF. ENVIRONMENT

H.B. No. 5362 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE REGISTRATION AND INSPECTION OF MUNICIPAL POUNDS AND SHELTERS', to require municipal pounds and shelters to register with the Department of Agriculture and follow the same sanitation and animal treatment standards as other registered facilities. REF. ENVIRONMENT

H.B. No. 5363 (RAISED) ENVIRONMENT. 'AN ACT ESTABLISHING A CARBON PRICE FOR FOSSIL FUELS SOLD IN CONNECTICUT', to establish a carbon price for fossil fuels sold in the state. REF. ENVIRONMENT

H.B. No. 5364 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE PROTECTION OF HORSESHOE CRABS', to prohibit the taking of horseshoe crabs at certain locations in Stratford and require recommendations concerning the protection of horseshoe crabs. REF. ENVIRONMENT

H.B. No. 5365 (RAISED) ENVIRONMENT. 'AN ACT AUTHORIZING LIFETIME HUNTING AND FISHING LICENSES', to authorize the establishment of lifetime hunting and fishing licenses. REF. ENVIRONMENT

H.B. No. 5366 (RAISED) ENVIRONMENT. 'AN ACT AUTHORIZING SUNDAY BOW HUNTING OF DEER ON PRIVATE PROPERTY THROUGHOUT THE STATE', to authorize the bow hunting of deer on private property on Sundays throughout the state rather than only in deer management zones. REF. ENVIRONMENT

H.B. No. 5367 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE DISPOSITION OF CERTAIN BITING AND ATTACKING DOGS', to convene a working group to examine the prevalence of vicious dog attacks in the state and develop recommendations for how to reduce the number of such attacks and how to mitigate the effects of disposal orders for such attacking animals on municipalities and the state. REF. ENVIRONMENT

H.B. No. 5436 (RAISED) COMMERCE. 'AN ACT CONCERNING CERTAIN PROPERTY TAX AGREEMENTS BETWEEN MUNICIPALITIES AND PROSPECTIVE PURCHASERS OF BROWNFIELDS AND ABANDONED PROPERTIES AND ESTABLISHING A BROWNFIELD REMEDIATION TAX CREDIT', to authorize municipalities and prospective purchasers of brownfields and abandoned properties to enter into certain agreements concerning property taxes and to establish a tax credit for costs associated with the remediation of a brownfield. REF. COMMERCE

H.B. No. 5453 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE RENEWAL OF LIABILITY INSURANCE POLICIES FOR UNDERGROUND STORAGE TANKS', to require liability coverage policies for underground storage tanks to renew at the end of the term for such policy if the insured is in good standing and has timely paid the premiums for such policy. REF. ENVIRONMENT

H.B. No. 5454 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING NINETY-DAY PERMIT TURNAROUND TIMES FOR THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION', to modify and clarify certain ninety-day turnaround times for permits issued by the Department of Energy and Environmental Protection. REF. ENVIRONMENT

H.B. No. 5455 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE STATE WATER PLAN', to require the updating of the state water plan every five years. REF. ENVIRONMENT

H.B. No. 5456 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING LOCAL REPRESENTATION ON THE CONNECTICUT SITING COUNCIL AND THE LANGUAGE OF PROPERTY OWNER NOTICES FOR CERTAIN FACILITY APPLICATIONS', to require a municipal representative be appointed for each application before the Connecticut Siting Council concerning an electric distribution company and to require certain Siting Council proceeding notices to abutting property owners to be written in layman's terms. REF. ENVIRONMENT

H.B. No. 5457 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING BOTTLE REDEMPTION CENTERS', to increase the handling fee paid to redemption centers. REF. ENVIRONMENT

H.B. No. 5493 (RAISED) BANKING. 'AN ACT CONCERNING A STUDY OF RESIDENTIAL PROPERTY ASSESSED CLEAN ENERGY', to require the Banking Commissioner to submit a report concerning the feasibility of establishing a residential property assessed clean energy program in this state. REF. BANKING

S.B. No. 109 (COMM) ENVIRONMENT. 'AN ACT CONCERNING THE PROTECTION OF CONNECTICUT'S WATER, AIR AND NATURAL RESOURCES', to protect the state's natural resources. REF. ENVIRONMENT

S.B. No. 338 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE USE OF COMMUNITY INVESTMENT ACCOUNT FUNDS FOR COMBATTING INVASIVE SPECIES', to provide funds through the community investment account for combatting invasive species that affect lakes. REF. ENVIRONMENT

S.B. No. 339 (RAISED) ENVIRONMENT. 'AN ACT EXTENDING THE PROHIBITION ON MUNICIPAL ORDINANCES CONCERNING INVASIVE PLANTS', to extend the prohibition on municipal ordinances concerning invasive plants. REF. ENVIRONMENT

S.B. No. 340 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE USE OF MAN-MADE STRUCTURES TO MARK THE COASTAL JURISDICTION LINE', to authorize the use of pipes, culverts and man-made structures to mark the coastal jurisdiction line. REF. ENVIRONMENT

S.B. No. 341 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING CLOTHING FIBER POLLUTION', to establish a consumer awareness, education and clothing labeling program that is intended to reduce the amount of microfiber plastic in the state's waterways. REF. ENVIRONMENT

S.B. No. 342 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE THRESHOLD FOR THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION'S REVIEW OF ALTERNATIVE TREATMENT SEPTIC SYSTEMS', to provide for the authorization of certain alternative treatment septic systems under the authority of the Department of Public Health. REF. ENVIRONMENT

S.B. No. 343 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE EFFECTS OF CLIMATE CHANGE ON THE SAFETY PLANS OF CERTAIN CHEMICAL FACILITIES IN THE STATE AND RESIDENTS OF DISTRESSED MUNICIPALITIES', to require the updating of safety plans for certain chemical facilities in the state that are at risk of flooding and other severe weather events as reflected in updated sea level rise projections and to establish a Climate Justice Working Group within the Governor's Council on Climate Change. REF. ENVIRONMENT

S.B. No. 344 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING REGULATIONS FOR ELECTRONIC SURVEILLANCE DEVICES REQUIRED BY THE DEPARTMENT OF AGRICULTURE', to require the Department of Agriculture to adopt regulations for the enforcement of the use of electronic surveillance devices by aquaculture licensees. REF. ENVIRONMENT

S.B. No. 345 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING CLIMATE CHANGE EDUCATION IN CONNECTICUT SCHOOLS', to require the teaching of climate change in Connecticut schools that is consistent with the Next Generation Science Standards adopted by the State Board of Education. REF. ENVIRONMENT

S.B. No. 346 (RAISED) ENVIRONMENT. 'AN ACT ESTABLISHING PARITY FOR OIL AND GAS LEAK REPAIRS', to establish parity between gas companies and home heating oil dealers for response and remediation times when there is a leak of their respective products. REF. ENVIRONMENT

S.B. No. 347 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING CONSENT ORDERS ENTERED INTO BY THE COMMISSIONER OF ENERGY AND ENVIRONMENTAL PROTECTION', to require the consent of the party to a consent order with the Department of Energy and Environmental Protection before such order can be modified or revoked and enable the parties to such a consent order to seek relief from the courts concerning the terms, conditions and compliance with such order. REF. ENVIRONMENT

S.B. No. 348 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING NIGHT HUNTING OF COYOTES', to authorize the hunting of coyotes at night, similar to raccoon and opossum hunting. REF. ENVIRONMENT

S.B. No. 349 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING REGIONAL ANIMAL SHELTERS', to provide funding for part of the cost of operating regional animal shelters. REF. ENVIRONMENT

S.B. No. 350 (RAISED) ENVIRONMENT. 'AN ACT REQUIRING THE POSTING OF A DECOMMISSIONING BOND FOR CERTAIN SOLAR PROJECTS', to require the posting of a decommissioning bond for certain solar projects that are installed on prime farmland in order to provide for the return of such land to a productive agricultural condition. REF. ENVIRONMENT

S.B. No. 357 (RAISED) HOUSING. 'AN ACT CONCERNING FUNDING FOR LEAD ABATEMENT', to fund certain lead abatement and blight remediation programs. REF. HOUSING

S.B. No. 415 (RAISED) FINANCE, REVENUE AND BONDING. 'AN ACT CONCERNING GRANTS FOR COMBINED SEWER PROJECTS', to increase the amount of a project grant for a combined sewer project from fifty per cent to not less than eighty per cent of the cost of the project. REF. FINANCE, REVENUE AND BONDING

 

S.B. No. 424 (RAISED) ENVIRONMENT. 'AN ACT AUTHORIZING BONDING FOR BIKEWAYS, GREENWAYS AND RECREATIONAL TRAILS', to authorize additional bonding for trails, greenways and bikeways. REF. ENVIRONMENT

S.B. No. 425 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING LED LIGHT POLLUTION IN THE STATE', to establish a preference for the purchase of yellow-tinted LED lights whenever state funds are used for the purchase of LED lights in order to minimize the health effects and glare from white LED lighting and to authorize municipalities to develop their own ordinances concerning light pollution. REF. ENVIRONMENT

S.B. No. 426 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING ABANDONED FISHING GEAR IN LONG ISLAND SOUND', to better address the problem of abandoned commercial fishing gear in Long Island Sound and allow for its removal and disposal. REF. ENVIRONMENT

S.B. No. 427 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING PUBLIC TRUST COMPONENTS OF THE STATE WATER PLAN', to provide that private drinking wells are not held in the public trust and therefore not subject to regulation by the state water plan. REF. ENVIRONMENT

S.B. No. 428 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING POST-CONSUMER CONTENT FOR PLASTIC BOTTLES SOLD IN CONNECTICUT', to require plastic beverage bottles sold in the state to contain twenty-five per cent post-consumer recycled content by 2025. REF. ENVIRONMENT

S.B. No. 429 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE PASSPORT TO THE PARKS', to enable the transfer of funds from the Passport to the Parks account and require special event fees at state parks to be based on the number of attendees and cover state costs related to such events. REF. ENVIRONMENT

S.B. No. 449 (RAISED) ENVIRONMENT. 'AN ACT CONCERNING THE DISPOSITION OF THE FORMER SEASIDE SANATORIUM FACILITY', to require the issuance of a request for information in order to learn what the highest and best use for the former Seaside Sanatorium facility is while preserving public access to the shoreline area of such property. REF. ENVIRONMENT

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