New Law Allows Construction Permit Denial Based on Cumulative Effect Grounds

On June 7, Connecticut lawmakers passed SB 1147, An Act Concerning the Environmental Justice Program of the Department of Energy and Environmental Protection, which Gov. Ned Lamont then signed into law June 29. 

The law allows either the Connecticut Department of Energy and Environmental Protection or the Connecticut Siting Council to deny or impose specific conditions on permits for new construction and operation of proposed industrial facilities based on a determination that “cumulative environmental or public health stressors” on environmental justice communities proximate to the proposed facility are higher than on other communities in the state. 

Manufacturers that are considering new construction should start gathering data now on the environmental and public health of communities around the proposed facility and plan for extensive engagement with the environmental justice community.

Which Facilities Are Subject to the Law?

The act targets “affecting facilities” that are already subject to Section 22a-20a of the Connecticut General Statutes. 

“Affecting facilities” include certain large-scale electric generating facilities; sludge, solid or medical waste incinerators; large-scale sewage treatment plants; recycling plants; and major sources of air pollution. 

The act provides exemptions for facility expansions and it does not apply to permit renewals or modifications.

Environmental Justice Community

Communities located in close proximity to heavy industry have historically borne the greatest pollutive impacts of such industrial sites and are considered environmental justice communities. 

The communities most affected are frequently comprised of low-income people of color.

Connecticut defines an environmental justice community as a distressed municipality or a defined census block group where 30% of the population lives below 200% of the federal poverty level. 

DEEP defines an environmental justice community on its website. 

While the concept of an environmental justice community is not new, both state and federal government have recently begun to aggressively prioritize addressing inequalities affecting those communities.

Connecticut’s law comes on the heels of President Biden’s Executive Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All. 88 Fed. Reg. 25253 (Apr. 26, 2023). 

EO 14096, in turn, directs all federal agencies to begin to address activities that disproportionately increase cumulative environmental and public health stressors on environmental justice communities.

Cumulative Environmental, Public Health Stressors

The act’s definition of “environmental or public health stressor” is markedly broad and includes “any source of environmental pollution that causes a potential public health impact.” 

This implicates both chemical and non-chemical sources of pollution in soil, groundwater and drinking water, and indoor, and outdoor air. 

Measurements for pollution in these mediums within those communities are available, for example, in Connecticut’s Environmental Justice Screening Tool and the U.S. Environmental Protection Agency’s EJ Screen. 

The screens provide community data ranging from air pollution (e.g., ozone, diesel particulate matter); proximity concerns (e.g., to superfunds, traffic, hazardous waste, and underground storage); to socioeconomic indicators and health disparities. 

While the screens could help manufacturers prepare a baseline assessment of the proposed site, Connecticut’s screen is not yet finalized and EPA itself acknowledges that its data are evolving, difficult to gather, and frequently incomplete.

DEEP is also, per the act, tasked with promulgating regulations that inform manufacturers of tools that they may use to help measure environmental and public health stressors.

Permit applicants should gather as much information as possible from affected environmental justice communities.

Engaging with Affected Communities

Gathering information from environmental justice communities requires the permit applicant to physically travel to and spend time with the potentially affected community well before the project is even proposed.

“Meet informally—and circulate notice of meetings broadly.”

The act requires the permit applicant to hold an informal public meeting but, prior to that, explicitly share information about the meeting—and the proposed facility. 

Specifically, the act seeks to encourage public participation by increasing the permit applicant’s obligations related to providing notice of the informal public meeting. 

In addition to the existing requirement that the permit applicant place an advertisement (minimum of one-quarter page) in a local newspaper, the act would require a permit applicant to:

• • Send notice by mail of the meeting to all homes within a half mile radius of the proposed facility; and
  • Post notice “on electronic media, including, but not limited to, relevant Internet websites and social media platforms[.]”

“Provide opportunity to review project documents.”

The neighborhood mailing must explain, in all languages that are used by over 15% of the environmental justice community, how and where the public may review project documents. 

Likewise, the newspaper advertisement must also now include how the public may review project documents, but it does not include the language requirement.

In other words, the permit applicant must make available to the public:

• • Complete needs assessment
  • Alternatives assessment
  • Environmental impact analysis
  • Assessment of environmental and public health stressors before it proposes the project.

“Compile and make available detailed Public Participation Report.”

Thereafter, as part of its proposal, the permit applicant must provide to DEEP a Public Participation Report. 

This detailed report must include all written comments received; the applicant’s responses to them and to verbal comments; any changes affecting the proposed facility based on public comments; and the applicant’s assessment of environmental or public health stressors, including unavoidable stressors should the permit be granted. 

Even if these stressors already existed in the environmental justice community, and if the proposed facility were clean (e.g., with low carbon footprint or no noise or hazardous waste pollution), the permit could not be granted.

Implications

Implications include construction timeline, disclosure could cause reputational harm, and risk of losing government funding. 

During the June 1, 2023 state Senate session, Senator Rick Lopes (D-New Britain) informed the senators that they “had the help of quite a few people on this bill,” including CBIA, working together to make it “as palatable as possible.” 

Nonetheless, the bill is not without its implications.

Inevitably, the expanded responsibilities of DEEP and the permit applicant under the act will result in increases in overall construction costs and timeline. 

Compliance with the expanded public notice requirements, including individual mailing and maintenance of public records, will necessarily result in a lengthier timeline and increased cost of compliance for permit applicants. 

Similarly, DEEP’s increased responsibilities will undoubtedly increase the overall pre-construction timeline because of the agency’s broader involvement in the process.

Permit applicants will need to be prepared to disclose extensive data about their proposed facilities and understand the impact of any potential emissions and pollutants. They will need to use modeling to create accurate human health risk assessments. 

These models will become public—and if they present negative impacts, applicants should be prepared for similarly negative social media reports. 

They could further cause public and private companies to lose shareholder and client confidence, respectively.

Permit applicants will need to disclose data if applying for federal funds. EO 14096 directs federal agencies to address their “federal activities’” contributions of adverse human health and environmental effects to environmental justice communities. 

The executive defines federal activities to include “agency actions related to … oversight of federal funds.”

Next Steps

Permit applicants should stay current on regulations: upon becoming law, the act will become effective Oct. 1, 2023 and will amend CGS 22a-20a. 

It tasks DEEP with promulgating regulations which should provide applicants additional guidance on how to measure environmental and public health stressors. 

In the meantime, manufacturers that are considering constructing new facilities should begin to plan for meaningful community meetings and communications.

This article first appeared on CBIA's website and is republished here with permission.