The following provides a summary of significant environmental and land use activity by the Connecticut General Assembly during a very busy 2010 legislative session. Bills passed into law address such areas as:
Of particular note, legislative efforts focusing on ways to improve and streamline the permitting process at the Connecticut Department of Environmental Protection (DEP) culminated in Public Act (P.A.) No. 10-158, which contains a number of initiatives aimed at fostering economic development within Connecticut by expediting the review and issuance of environmental permits. Among other initiatives were acts affecting coastal permitting, brownfield development, site remediation, green financing, conservation restrictions, recycling, and municipal plans of development. Additionally, the legislature passed an energy bill vetoed by Governor M. Jodi Rell, and there were several environmental bills of interest that did not pass.
The 2011 legislative session convened January 5 and will conclude in June. At the top of the legislature's agenda will be adopting a new two-year budget for fiscal years 2012 and 2013. While enacting a new budget will take precedence, potential environmental and land use legislation in areas such as environmental liability reform, brownfields, and additional permitting initiatives may receive consideration. There may also be renewed efforts to pass energy legislation. Please contact any of Day Pitney's Environmental and Land Use attorneys listed in the sidebar for more information about the above acts and bills or other environmental and land use laws and regulations.
An Act Concerning the Permit and Regulatory Authority of the Department of Environmental Protection and Establishing an Office of the Permit Ombudsman within the Department of Economic and Community Development
P.A. No. 10-158 makes significant reforms to DEP's permitting process. It changes the way DEP will adopt Water Quality Standards for Connecticut in the future and establishes an Office of the Permit Ombudsman within the Connecticut Department of Economic and Community Development (DECD).
The act requires DEP to use all reasonable efforts to review permit applications and provide notice of application deficiencies within 60 days of receipt. Once a permit application is deemed sufficient, DEP must use all reasonable efforts to issue a tentative determination within 180 days.
The act directs DEP to assess existing time frames for the review of individual permits and to issue a comprehensive report by September 30, 2010, that (1) proposes a plan for a pilot expedited permitting process to include at least 200 facilities; (2) prescribes changes to review schedules for individual permits to comply with the 60- and 180-day time frames discussed above; and (3) identifies process improvements, resources, staffing, and programmatic changes necessary to meet these time frames.
In coordination with representatives from environmental groups, the business community, and municipalities, DEP's report addresses (1) the impact of the Connecticut Environmental Protection Act on the business community, on the timeliness and certainty of the permitting process, and on the efficacy of the permitting process in protecting and preserving the environment; and (2) existing procedures for issuing general permits for regulated activities. DEP timely submitted its Permitting Assessment Report, which included recommendations for further permitting process improvements. A copy of the report is available here.
Further, the act allows DEP to extend general permit expiration dates by up to one year while the agency decides whether to renew the general permit. It also includes procedures for withdrawing petitions for public hearing, authorizes DEP to waive the requirement for submitting plans and specifications for certain wastewater discharges, and contemplates a consulting services program or other compliance assistance program for regulated entities. After consulting with the U.S. Environmental Protection Agency (EPA) and by October 31, 2010, DEP is to reallocate existing resources and adjust existing policies to implement a consulting services program or, if this is infeasible, alternative programs to provide compliance assistance.
Beginning March 1, 2011, the act requires that DEP adopt future water quality standards as regulations. DEP must provide 90 days' notice prior to proposing amendments to the water quality standards, making supporting documents available for at least 90 days as well. Nothing in the act prevents DEP from adopting pending proposed amendments to the water quality standards prior to March 1, 2011.
At DECD, the act creates an Office of the Permit Ombudsman to oversee and expedite permitting from the Departments of Environmental Protection, Public Health, and Transportation for certain community development projects. Eligible projects include those that create at least 100 new jobs, create at least 50 new jobs in an enterprise zone, are located in brownfields, are compatible with responsible growth initiatives or constitute transit-oriented development, develop green technology business, or satisfy certain other criteria in the act. Ineligible projects include those relating to final disposal of solid, biomedical, or hazardous waste; those whose primary function is to produce electrical power, extract natural resources, or produce oil; and those that construct, operate, or maintain oil, natural gas, or sewage pipelines.
The act also includes an amendment to the Uniform Administrative Procedure Act that will require agencies to analyze and, to the extent appropriate, implement regulatory methods to minimize adverse effects on small businesses. Many provisions in the act are based on work by a Permitting Task Force that submitted more than a dozen recommendations to Governor M. Jodi Rell in April 2010. (Day Pitney's Beth Barton was a member of the Task Force.) A copy of the report of the Task Force is available here.
EFFECTIVE DATE: Effective from passage or as specified in the applicable provision
SIGNED BY GOVERNOR: June 9, 2010
An Act Concerning Long Island Sound, Coastal Permitting and Certain Group Fishing Licenses and Permits for Solid Waste Facilities
P.A. No. 10-106 contains provisions related to wetlands, dredging, and solid waste disposal facility permits. Due to concerns with provisions related to solid waste disposal permitting, Governor M. Jodi Rell vetoed the act on June 8, 2010. However, the Connecticut Legislature voted to override the veto.
The act requires permit and certificate holders to record in the municipal land records certified copies of permits for regulated activities in wetlands, dredging permits, certificates of permission for routine maintenance, and emergency authorizations for corrective action issued after October 1, 2010, and pursuant to sections 22a-32, 22a-361, 22a-363b, and 22a-363d of the Connecticut General Statutes. The documents must be recorded within 30 days of issuance or, if already issued, prior to transferring the land.
The act expands those activities for which a certificate of permission is available to include tidal wetland restoration and resource restoration or enhancement, as defined by the act, as well as substantial maintenance or repair of certain structures, fill, obstructions, or encroachments placed landward of the mean high waterline and waterward of the high tide line.
The act prohibits DEP from making a determination of need or issuing a permit for a new solid waste disposal facility or expansion to an existing facility located within 1,000 feet of a primary or secondary aquifer area unless such additional capacity is necessary under the Solid Waste Management Plan. Governor Rell vetoed the bill on June 8, 2010, citing concerns that it would negatively impact 11 businesses with applications pending.
With regard to permit fees for dredging, erecting structures, and placing fill or mooring structures in tidal, coastal, or navigable waters of the state waterward of the high tide line, the act allows DEP to adopt regulations varying permit fees, provided that the regulations include a simplified schedule of fees that promotes expedited approval of permit applications. In an effort to address certain structures constructed without building or dredging permits or ineligible for a certificate of permission, the act establishes a permit fee for such existing structures. That fee is four times the amount that would have been due with an application pursuant to Connecticut General Statutes § 22a-361 but may be lowered if DEP finds significant extenuating circumstances.
With regard to wetland regulated activity permits required by Connecticut General Statutes § 22a-32, the act allows applicants to request hearings on their applications; existing law allowed a request for a hearing only in the form of a petition signed by 25 people. The act also eliminates the requirement that wetland regulated activity permit hearings occur between 30 and 60 days after the application is filed and allows the commissioner to waive the public hearing requirement when the regulated activity proposed is not likely to have a significant impact on the wetland. To waive the public hearing requirement, the commissioner must publish notice of the application, the intent to waive the hearing, and the tentative decision on the application.
Other provisions in the act define "no discharge zone" under Connecticut General Statutes § 15-170 et seq. as waters in Long Island Sound that EPA has designated as no-waste-discharge areas, and repeal Connecticut General Statutes § 22a-112 to 22a-113c, eliminating coastal management grants to municipalities and the estuarine embayment improvement program.
EFFECTIVE DATE: Coastal management act grants and solid waste provisions upon passage; other provisions October 1, 2010
VETOED BY GOVERNOR: June 8, 2010
VETO OVERRIDE: June 21, 2010
An Act Concerning the Enforcement of Prohibited Actions Concerning Certain Invasive Plants
P.A. No. 10-20 grants authority to conservation officers, special conservation officers, and patrolmen to make arrests for violations of laws and regulations prohibiting growing, distributing, or buying invasive plants. It provides full-time conservation officers with the same powers to enforce violations of invasive plant laws as policemen or constables.
EFFECTIVE DATE: October 1, 2010
SIGNED BY GOVERNOR: May 5, 2010
An Act Concerning the Legislative Commissioner's Recommendations for Technical Corrections to the Public Safety Statutes and an Effective Date Change
P.A. No. 10-54 delays the effective date of certain provisions in P.A. No. 09-177 affecting the Fire Prevention Code by two years, from January 1, 2011, to January 1, 2013. The 2009 act, in part, amended certain safety regulations for flammable and combustible liquids and included additional definitions in Connecticut General Statutes § 22a-448, which identifies various types of hazardous waste and water pollutants. Of note, the 2009 bill provided a definition of "hazardous chemicals" that includes highly flammable materials, including corrosive liquids, oxidizing materials, and poisonous gases.
EFFECTIVE DATE: Upon passage for changes to effective dates
SIGNED BY GOVERNOR: May 18, 2010
An Act Concerning Connecticut Qualified Biodiesel Producer Grants
P.A. No. 10-64 expands the availability of Qualified Biodiesel Producer Grants from producers and distributors of biodiesel fuel to entities intending to produce, store, or distribute biodiesel. Grants are from the Connecticut Qualified Biodiesel Producer Incentive Account administered by DECD and are available for up to 15 million gallons of biodiesel per producer per year, based on a statutory schedule. The act includes provisions for reduced grant amounts when available funds are limited, and it restricts the availability of one-time grants for equipment and construction to entities not yet actively producing biodiesel. Applicants are required to show documentation that their biodiesel fuel has a net carbon benefit as compared to the fuel it will replace.
P.A. No. 10-64 also requires DEP to sell carbon dioxide (CO2) allowances at a fixed price to certain combined heat and power (CHP or cogeneration) units that cannot pass increased costs to power purchasers or recover costs through electricity markets. Allowances for CHP units subject to long-term power purchase agreements entered into before 2001 will cost $2.02, adjusted annually for inflation using an August 2008 base. DEP must sell the allowances by June 1 in 2012, 2013, and 2014.
EFFECTIVE DATE: Upon passage
SIGNED BY GOVERNOR: May 18, 2010
An Act Requiring Biodiesel Blended Heating Oil and Lowering the Sulfur Content of Heating Oil Sold in the State
P.A. No. 10-74 reduces the maximum allowable sulfur content in heating oil sold, distributed, or used in Connecticut from 3,000 parts per million (ppm) to 50 ppm starting July 1, 2011, and to 15 ppm starting July 2, 2014. "Heating oil" as defined by the act means heating fuel that meets American Society of Testing Materials (ASTM) standard D396 or D6751.
The act also requires that heating oil sold after July 1, 2011, be blended with at least 2% biodiesel, with the percentage of biodiesel gradually increasing to 20% in 2020. "Biodiesel blend" as defined by the act means a fuel composed of mono-alkyl esters of long-chain fatty acids derived from vegetable oils or animal fats that meets the most recent version of ASTM International designation D6751. Neither provision will take effect until New York, Massachusetts, and Rhode Island adopt similar standards.
The act also established a Distillate Advisory Board (DAB) within the Department of Consumer Protection (DCP). If DCP, in consultation with the DAB, determines in-state biodiesel production is less than 50% of what is required, it may delay implementation of the biodiesel blending requirements until July 1, 2012, and again until July 1, 2013. DCP also has the authority to issue temporary waivers of the biodiesel content requirement under certain circumstances.
EFFECTIVE DATE: October 1, 2010, for biodiesel blending;
July 1, 2011, for sulfur content
SIGNED BY GOVERNOR: May 26, 2010
An Act Concerning the Recommendations of the Majority Leaders' Job Growth Roundtable
P.A. No. 10-75 seeks to stimulate job growth and business expansion in Connecticut through new loan programs and tax credits. The act establishes:
EFFECTIVE DATE: Upon passage for the small business tax credit program; July 1, 2010, for the loan, investor, and pilot programs, and tax exemption
SIGNED BY GOVERNOR: May 6, 2010
An Act Concerning Conservation and Preservation Restrictions Held by the State
P.A. No. 10-85 clarifies that applicants for permits from a land use agency, who are required to notify holders of conservation or preservation restrictions on the affected land of their permit application at least 60 days prior to filing, are not required to do so when the proposed activity will take place on an unrestricted part of the property.
P.A. No. 10-85 also contains a new provision requiring municipalities that acquire land and intend to place a conservation, preservation, or other use restriction on the area to record such restriction and the source of the restriction in the land records. The source recording requirement is satisfied by recording on the land records the date the restriction was approved through local legislation or referendum, along with the source of the funds used for acquisition when that source required restricted use of the land. According to the act, a municipality's failure to comply with its recording provisions does not constitute evidence that the restriction itself is invalid.
EFFECTIVE DATE: October 1, 2010, for notice; upon passage for municipal recording
SIGNED BY GOVERNOR: May 26, 2010
An Act Concerning the Remediation Account for Dry Cleaning Establishments and Regulated Activity on Certain Sites Undergoing Remedial Action
P.A. No. 10-86 makes former dry cleaning establishment sites eligible for grants from the Dry Cleaning Establishment Remediation Account so long as they meet the criteria already in effect for grants to existing dry cleaning establishments seeking grants. To be eligible, former and existing dry cleaning establishments (1) must have used tetrachlorethylene, Stoddard solvent, or other chemicals for the purpose of cleaning clothing or fabrics; (2) operated for at least one year prior to submission or approval of the grant application; and (3) not be in tax arrears. The Dry Cleaning Establishment Remediation Fund provides grants for cleanup, containment, and mitigation of pollution from dry cleaning solvents.
Further, P.A. No. 10-86 provides that regulated activities, defined by Connecticut General Statutes § 22a-354h as handling, using, and storing potential groundwater pollutants in aquifer protection areas, shall not be prohibited in aquifer protection areas undergoing remediation at the time the protection area is designated, provided that regulated activities were not actively occurring in the area in the five years preceding the aquifer protection designation. The act also requires that, for 10 years following the designation of land as an aquifer protection area, persons undertaking regulated activities must register with DEP.
EFFECTIVE DATE: Upon passage
SIGNED BY GOVERNOR: June 2, 2010
An Act Concerning Private and Municipal Recycling, Zoning Ordinances and Solid Waste Collection Contracts
P.A. No. 10-87 includes a variety of provisions related to recycling and solid waste collection.
The act requires DEP to amend regulations listing materials that must be recycled to include certain types of plastics, boxboard, and certain types of paper, such as magazines, by October 1, 2011. It requires municipalities to offer curbside recycling by July 1, 2011, where they already pick up garbage as of October 1, 2010. Other solid waste collectors must offer curbside recycling to their customers by October 1, 2010.
The act also requires recycling receptacles at common gathering venues with trash cans, such as hotels, arenas, hospitals, and theaters. It bars zoning regulations that would prohibit recycling receptacles, require them to conform with bulk or lot area provisions, or limit access to or the size of recycling receptacles for businesses (except for aesthetic screening). Other provisions establish recycling collection requirements that must be included in commercial solid waste collection contracts and change the form and content of recycling reports that solid waste collectors must submit to municipalities and that municipalities must submit to DEP.
Additionally, the act requires DEP to submit to the General Assembly's Environment Committee a report on the costs and benefits of removing food from the waste stream and developing composting facilities, and to study and submit a report on potential beneficial uses of ash residue. The ash residue report was due January 1, 2011, and the composting report is due June 1, 2011.
EFFECTIVE DATE: As specified in the applicable provision
SIGNED BY GOVERNOR: June 2, 2010
An Act Concerning the Environmental Impact Evaluation Prepared for a State-Owned Airport Development Project, and the Requirements for the Preparation, Evaluation and Review of Environmental Impact Evaluations
P.A. No. 10-120 allows state agencies, institutions, and departments to contract for performance of environmental impact evaluations (EIEs) conducted under the Connecticut Environmental Policy Act (CEPA) if the state entity guides, participates in, and independently reviews the evaluation prior to submitting it for public comment, and assures that the party conducting the activity subject to evaluation is not also a party to the EIE contract. The third party engaging in the evaluated activity may be required to pay a fee to the state agency, institution, or department to cover the cost of hiring the contractor.
EFFECTIVE DATE: Upon passage
SIGNED BY GOVERNOR: July 7, 2010
An Act Concerning Brownfield Remediation Liability
P.A. No. 10-135 creates a new property tax incentive for brownfield redevelopment by adding a provision to Connecticut General Statutes § 12-81r that allows municipalities to freeze property tax assessments at the last assessment amount prior to commencement of remediation activities. The assessment may be fixed for up to seven years, so long as the remediation was approved by DEP or verified by a licensed environmental professional.
The act allows DECD to use funds from the Special Contaminated Property Remediation and Insurance Fund for the remedial action and redevelopment municipal grant program under Connecticut General Statutes § 32-9kk and to fund the targeted brownfield development loan program developed pursuant to the same statute.
The act expands the Urban Sites Remediation Program and the Special Contaminated Property Remediation and Insurance Fund to allow DEP to use the funds to reimburse the following entities for directors' and officers' liability insurance as well as for general liability insurance: (1) municipal economic development agencies or entities created under chapter 130 or 132; or (2) nonprofit economic development corporations formed to promote the common good, general welfare, and economic development of a municipality and that are funded, directly or with in-kind services, in part by a municipality, municipal economic development agency or entity created under chapter 130 or 132, or a nonstock corporation or limited liability company controlled or established by a municipality.
The act provides that regulated activities, defined by Connecticut General Statutes § 22a-354h as the handling, using, and storing of potential groundwater pollutants in aquifer protection areas, shall not be prohibited in aquifer protection areas on any municipally owned site undergoing remediation at the time the protection area is designated, provided that regulated activities were not actively occurring in the area in the five years preceding the aquifer protection designation. The act also requires that, for 10 years following the designation of land as an aquifer protection area, persons undertaking regulated activities must register with DEP.
The act also creates an 11-member working group to examine the remediation and development of brownfields, including but not limited to the remediation scheme for such properties, permitting issues, and liability issues, including those in Connecticut General Statutes §§ 22a-14 to 22a-20, inclusive. The group is to include two members appointed by the governor, with other members appointed by the legislative leaders. It will report its findings and recommendations to the Commerce Committee by January 15, 2011.
EFFECTIVE DATE: July 1, 2010, for property taxes; October 1, 2010, for the Urban Site Remediation Fund; upon passage for the working group
SIGNED BY GOVERNOR: June 8, 2010
An Act Concerning the State Plan of Conservation and Development and Dissolving the Wolcottville School Society
P.A. No. 10-138 postpones the requirement that municipal planning commissions revise or amend their 10-year municipal plans of conservation and development until June 30, 2013, and provides that municipalities will not become ineligible to receive discretionary state funds because of a failure to do so until July 1, 2014. Under Connecticut General Statutes § 8-23, municipal planning commissions must adopt or amend their plans every 10 years, and if they fail to do so by July following the adoption of the state Conservation and Development Policies Plan, they may become ineligible for discretionary state funds.
The act also delays by one year, to March 1, 2012, the deadline for revising the existing state Conservation and Development Policies Plan, and it requires the plan to be enlarged to include transportation, energy, and air policies. The delay resets the five-year schedule for revisions to the state Conservation and Development Policies Plan; the next plan will be for 2013-2018.
P.A. No. 10-138 also requires the Office of Policy and Management (OPM) to create a new system for adopting the five-year state plan of conservation and development that will include a process for analyzing and reconciling regional and local plans with the state plan, a process the act dubs "cross-acceptance." Cross-acceptance involves (1) a process of public outreach and solicitation of opinions on a preliminary plan; (2) a comparison of the preliminary plan with regional and local plans; (3) negotiation of the preliminary plan intended to achieve consistency among the local, regional, and state plans; (4) a written statement addressing areas of agreement and disagreement and areas in need of modification; and (5) drafting and reviewing a final state plan. The New Jersey State Planning Commission's 2004 Cross-Acceptance Manual is to be considered as guidance for this new process. A draft of a cross-acceptance process for Connecticut was to be prepared by OPM by January 5, 2011.
Finally, the act requires state agencies considering grant applications related to proposed development to consider whether proposals are consistent with smart growth principles set forth in P.A. No. 09-230.
EFFECTIVE DATE: July 1, 2010, for delays for municipal plans; October 1, 2010, for smart growth principles; otherwise upon passage
SIGNED BY GOVERNOR: June 8, 2010
An Act Concerning the Inspection of Land for Use as an Ash Residue Facility by Certain State Quasi-Public Agencies
P.A. No. 10-140 requires that a written determination of need from DEP be obtained prior to physical inspection or evaluation of land for use as an ash disposal area. Under Connecticut General Statutes § 22a-208d, DEP must find, before it issues a permit to construct or expand resource recovery facilities, composting facilities, or ash residue disposal facilities, that such facility or disposal area is necessary to meet the solid waste disposal needs of the state and will not result in substantial excess capacity. The act advances when the finding must be made with regard to disposal areas for ash residue generated by a waste-to-energy facility.
EFFECTIVE DATE: Upon passage
SIGNED BY GOVERNOR: May 28, 2010
An Act Making Adjustments to State Expenditures for the Fiscal Year Ending June 30, 2011
P.A. No. 10-179 establishes the Green Connecticut Loan Guaranty Program to guarantee low-interest loans from participating institutions for energy conservation measures. The Connecticut Health and Educational Facilities Authority (CHEFA) will use state bond money to guarantee the loans; participating institutions include state and federally chartered banks, trust companies, savings and loan associations, credit unions, and certain authorized insurance companies. Eligible participants for the loans are individuals, nonprofits, and businesses with 50 or fewer full-time employees.
EFFECTIVE DATE: Upon passage
SIGNED BY GOVERNOR: May 7, 2010
P.A. No. 10-97, An Act Reducing Electricity Costs and Promoting Renewable Energy, was passed by the Connecticut legislature but vetoed by Governor M. Jodi Rell on May 24, 2010, citing concerns that it would raise consumer electric rates and create additional bureaucracy. The act was intended to increase energy efficiency, promote renewable energy, and ultimately lower electricity rates. Significant provisions in the bill would have renamed and reorganized the Department of Public Utility Control (DPUC). The new Connecticut Energy and Technology Authority would have included the existing DPUC and a new Division of Research, Energy and Technology to address power procurement, conservation and renewable energy, and research. Other provisions in the bill sought to promote renewable energy by incentivizing residential solar photovoltaic (PV) generation, require electric companies to enter long-term contracts with in-state solar PV generation projects, and establish a number of other programs related to solar energy.
The legislature also considered a number of environmental and land use bills it ultimately did not enact this past legislative session, including the following:
Senate Bill 383, An Act Concerning a State-Wide Water Use Plan, would have required the Department of Public Health (DPH) and DPUC to establish a statewide water use plan by October 1, 2011.
Senate Bill 123, An Act Concerning the Preservation of Natural Vegetation Near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act, proposed to allow municipal wetlands agencies to deny permits for activities that would interfere with natural vegetation within 100 feet of a wetland or watercourse. The bill defined "natural vegetation" as "naturally occurring shrubs, trees, or other plants" but not lawns.
Senate Bill 120, An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee, would have authorized the legislative Regulations Review Committee to review guidance from DEP when at least 25 people claimed (by petition) that the guidance constituted a regulation as applied to them.
Senate Bill 119, An Act Concerning Remediation Programs of the Department of Environmental Protection, would have given DEP authority to approve an "alternative institutional control" to environmental land use restrictions (ELURs) for certain remediation programs.
House Bill 5417, An Act Concerning an Open Space Registry, the Identification of Open Space for Acquisition and the Recording of Certain Open Space Restrictions, would have required DEP and the Department of Agriculture (DOA) to work with municipalities and create an open space and farmland preservation registry. The registry would be made available to state agencies and municipalities for purposes of monitoring, coordinating, and implementing open space, farmland preservation, and responsible growth goals.
Joseph Hammer, the firm's Real Estate Redevelopment practice group chair, will be moderating a program, "Navigating the Site Plan Review Process," presented by the New Haven County Bar Association (NHCBA).
Day Pitney Alert
Day Pitney Alert
Craig Gianetti spoke at a Morris County Economic Development Corporation (MCEDC) Forum, entitled "Opportunity Zones and How They Affect Your Business."
Katharine Coffey spoke at "Tax Abatements - Understanding Them and Examining Models That Work," a program presented by the NJRA Redevelopment Training Institute (RTI) and held at Thomas Edison State University in Trenton, NJ.
Day Pitney Press Release
Day Pitney Press Release
Day Pitney Press Release
Greenwich partner Lorraine Slavin was quoted in an article, "Property Rounds: An 'inexpensive insurance policy' for transactions," published by the Greenwich Time.
Greenwich partner Lorraine Slavin was quoted in an article titled "Sold: Numbers Show Busier November," published in the Business section of the Greenwich Time.