Earlier this year, the Connecticut Department of Energy and Environmental Protection (DEEP) released a “Connecticut Environmental Justice Public Participation Guidance Document” (‘the Guidance”) concerning the 2023 amendments to Connecticut’s environmental justice (EJ) statute regarding permitting or other approvals for certain facilities. Although helpful in indicating DEEP’s interpretation of the amended statute (which is not a model of legislative clarity), the Guidance leaves open many questions and raises some new ones. Beyond the Guidance, however, DEEP recently announced a general schedule for developing regulations to implement the most significant part of the amendments: cumulative impact assessments.

Background

Since its adoption in 2009, Connecticut’s EJ statute (Conn. Gen. Stat. § 22a-20a) has applied to “affecting facilities” that are located in or proposed to be located in an “environmental justice community” (both terms defined by the statute) and that apply to DEEP for a new or expanded permit, or to the Connecticut Siting Council for a Certificate of Environmental Compatibility and Public Need. For such facilities, the statute has required applicants to develop and implement a “meaningful public participation plan” and potentially enter into a “community environmental benefit agreement” (CEBA) between the applicant and the host municipality to mitigate potential environmental impacts of the affecting facility.

The 2023 amendments (Public Act 23-202) became effective on October 1, 2023. The amendments primarily do two things: (1) further enlarge applicant obligations concerning public participation, and most significantly, (2) make an assessment of the cumulative impact of “environmental and public health stressors” a new element in reviewing – and potentially denying – “affecting facility” applications. However, the amendments state that the cumulative impact assessment features shall not take effect until DEEP has adopted implementing regulations. The statute also requires DEEP to consult with stakeholders in this effort.

Public Participation Guidance

The recent Guidance addresses only the enhanced public participation features of the 2023 amendments and expressly does not address the cumulative impact assessments. It simply states that the development of the cumulative impact regulations will “take time.” The 2023 amendments also call for DEEP to adopt implementing regulations for the enhanced public participation features. However, the Guidance does not address such regulations or provide a timeline for their implementation.

The Guidance does highlight new requirements regarding public participation and presents DEEP’s integrated understanding of such requirements.  Much of this understanding is straightforward. For example, “affecting facility” applicants must now not only prepare and receive DEEP approval for a “meaningful public participation plan” before filing the application in question but must also prepare and receive DEEP approval for a report regarding the results of such public outreach in order for the application to be deemed sufficient. 

Beyond that, Goal 8 of DEEP’s recently announced “20BY26” plan includes several steps that DEEP plans to take regarding the enhanced public participation under the 2023 amendments, including:

  • Making all EJ public participation plans and CEBAs publicly available, including those that DEEP has previously received.
  • “Produc[ing] other tools … [to] facilitate efficiency and engagement,” such as more guidance to clarify how DEEP permitting and other programs interact with EJ communities, and to highlight opportunities for public participation in DEEP programs. 

While much of the Guidance is a relatively straightforward reflection of the 2023 amendments, at times the Guidance appears to provide DEEP’s interpretation of certain provisions in the amendments. Certain statements also may be susceptible to misinterpretation.  For example, in discussing applicability of the amended statute where an existing “affected facility” adds a new emissions unit or modifies an existing emissions unit, the Guidance references certain emissions rates (15 tons per year (TPY) for any individual air pollutant, and 10 TPY and 25 TPY for individual and aggregate hazardous air pollutants, respectively). DEEP has informally indicated that these figures are intended to mirror the applicability thresholds in the state’s air permitting regulations (RCSA 22a-174-3a(a)(1)).  This suggests that DEEP does not see the amended EJ statute as triggered by changes at an existing affected facility with relatively limited impact on air emissions. 

However, while the Guidance appears to say that these emission rates refer to actual emissions or increased actual emissions, in the air permitting regulations these figures refer exclusively to “potential emissions.”  This is a very conservative metric incorporating various worst-case and often very unrealistic assumptions, with the result that it is much easier to exceed a 15 TPY “potential emissions” threshold.  It would seem unlikely that the Guidance does not likewise intend to refer to “potential emissions.” The Guidance may also be susceptible to misinterpretation regarding modifications to existing affected facilities.  The Guidance appropriately notes that the EJ statute exempts “minor modifications,” but elsewhere states without qualification that the statute applies to an alteration of a facility that “may result in the discharge of any new water, substance or material.” (Emphasis added).  These examples underline that (as it itself notes) the Guidance is not a substitute for the statute itself.

Lastly, the Guidance does not address what DEEP envisions as a “reasonable fee” that the statute authorizes DEEP to charge “affecting facility” applicants to cover the cost of implementing the amended program.

Ultimately, while the Guidance is useful to some degree, the full impact of Public Act 23-202 will not be known until DEEP develops implementing regulations for the enhanced public participation requirements and particularly for cumulative impact assessments. 

Development of Cumulative Impact Regulations

In early March, DEEP announced an overall scheme and schedule for adopting cumulative impact regulations as Goal 7 in DEEP’s “20BY26” plan:

  • Hold “listening sessions” in EJ communities and with regulated parties (throughout 2024).
  • Release a Request for Proposals to develop “the ‘cumulative impacts tool’ that ultimately will give businesses the information that they can rely on to design, from the start, successful permit applications” (early 2024).
  • Propose “a strong but flexible set of rules” for public comment (late 2025). 

Interested parties would be well-advised to watch for opportunities for stakeholder involvement in these efforts as DEEP continues to implement the 2023 amendments. Those who are particularly interested can also sign up to receive DEEP’s Equity and Environmental Justice Newsletter, which includes timely updates on upcoming opportunities and events from DEEP’s Office of Equity and Environmental Justice.