You asked for a description of the process the Department of Environmental Protection (DEP) and the Siting Council follow in issuing permits for power plants. You also wanted to know the number of permit applications for power plants each agency has received in the past five years and the number of permits granted.

SUMMARY

The types of DEP and Siting Council permits required to build a power plant depend on the plant's size and location and how it operates, among other things. Plants generally require DEP air and water permits. The water permits can include diversion, wetland, and water discharge permits. Plants also must comply with other laws administered by DEP, e.g., those dealing with floodplains and endangered species. In addition, a Siting Council certificate is required to build most power plants. However, the council can approve the construction of certain power plants using an expedited process called a declaratory ruling.

DEP has a voluntary pre-application process for power plants and other developments that require multiple permits. The developer is asked to fill out a questionnaire that lists the activities to be performed and site characteristics in order to help the developer and DEP determine which permits are needed.

All prospective applicants for Siting Council certificates must consult with the proposed host municipality. As a matter of practice, the council requires applicants for a declaratory ruling to notify the municipalities as well as owners of abutting properties.

Since January 2009, the law has required a developer of certain power plants and other facilities to engage in a community outreach effort before filing applications for DEP permits and Siting Council approvals if the facility will be located in an “environmental justice community.” These are (1) distressed municipalities and (2) certain lower-income neighborhoods in other municipalities. The developer must (1) file and receive approval of a public participation plan, including an informal public meeting, with DEP or the Siting Council and (2) consult with officials of the municipality where the facility will be located or expanded to evaluate the need for a community environmental benefit agreement. By law, DEP and the Siting Council must wait at least 60 days after the informal public meeting to act on the applicant's request. The act specifies that any municipality, owner, or developer may enter into a community benefit agreement in connection with the facility.

There are notice requirements once a permit application is filed with either agency. The Siting Council must hold a hearing on the application and DEP must do so upon petition of 25 or more people (in practice DEP routinely receives such petitions for power plant applications.)

DEP uses a similar review process for the various types of permits it issues. Once DEP receives the application package, it conducts a preliminary review to determine the sufficiency of the application e.g., whether the applicant has provided all of the information needed and is legally authorized to seek the permit. An initial technical review is performed to determine whether or not a permit is required. If a permit is required, a detailed technical review is conducted to determine the extent of any adverse impacts resulting from the proposed activity. When the technical review is completed, the DEP commissioner makes a tentative determination to grant or deny the permit application. The applicant must publish a notice of the tentative determination in a local newspaper and public comments on it are then accepted. After the hearing is closed, DEP issues a final decision on the permit application, taking into account the comments made at the public hearing.

Over the past five years, DEP has received 27 applications for air permits at eight plants and approved all of them (permits are issued for individual generating units). We have been unable to determine the proportion of water permit applications for plants that have been approved, in part because the types of permits required vary by plant. DEP staff note that many of the applications for water permits for power plants have been for permit renewals rather than for new plants. The Siting Council has received 31 applications for declaratory rulings for generating facilities and has approved all of them (most of these applications have been for small-scale generating facilities rather than large power plants). During this period it has not received any certificate applications for generating facilities.

DEP PERMIT PROCESS

DEP has a voluntary pre-application process for power plants and other developments that require multiple permits. The developer is asked to fill out a questionnaire that lists the activities to be performed and site characteristics in order to help the developer and DEP determine what permits are needed.

PA 08-94 requires applicants seeking a DEP permit or Siting Council approval for certain new or expanded facilities proposed to be located in an "environmental justice community," to file an environmental justice public participation plan with the agency and receive its approval of the plan before filing an application for the permit. PA 08-94 applies to applications filed on or after January 1, 2009 for generating facilities with a capacity greater than 10 megawatts (commercial power plants typically have a capacity of 500 to 1,000 megawatts), as well as to various solid waste facilities and major sources of air pollution, as defined by the federal Clean Air Act.

Under PA 08-94, an “environmental justice community” is a (1) distressed municipality or (2) part of another municipality where at least 30% of the population has an income that is below 200% of the federal poverty level. A list of environmental justice communities is available at www.ct.gov/dep/cwp/view.asp?a=2688&Q=432364&depNav_GID=1511.

Applicants filing an application involving a new facility or an expansion of a facility in an environmental justice community must: (1) file a meaningful public participation plan, (2) receive written agency approval of the plan before filing an application, and (3) consult with the chief elected official (CEO) of the municipality to evaluate the need to enter into a community environmental benefit agreement with a municipality. 

To be considered “meaningful”, (1) the residents of the community must have an appropriate opportunity to participate in the process regarding a proposed new or expanded facility that may harm their environment or health; (2) the public's participation must be able to influence the agency's decision; and (3) the applicant must seek out and facilitate the participation of those potentially affected during the regulatory process.

The applicant must hold an informal meeting with members of the community. It must publish notice of the meeting in a local newspaper between 10 and 30 days before the meeting. The notice must be at least one-quarter page in size and give the date, time and nature of the informal meeting. The participation plan must identify other ways the applicant will notify the community of the meeting. DEP's fact sheet on these provisions is available at www.ct.gov/dep/lib/dep/environmental_justice/EJ_fs.pdf.

Air Permits

DEP's Air Management Bureau issues permits in accordance with the general statutes and DEP air pollution regulations.  Permits are licenses that allow the owner or operator of a new or existing source to operate a power plant or other stationary source that emits or has the potential to emit air pollution. The permit may include terms and conditions that cover the construction and operation of these sources. 

Large sources that have emissions over certain thresholds, such as power plants, must obtain federal Title V permits. These permits include terms and conditions for virtually all of the air pollution emitting activities at the facility and surrounding site. 

The applicant is responsible for publishing a notice when it applies for a DEP air permit. Once this notice is published, the applicant must send a copy of the notice to the CEO of the municipality in which the development is proposed, and send a copy of the notice, along with the certification of notice form, to DEP.

Once DEP receives the application, the initial application fee, and the certified copy of the notice of application, it conducts a preliminary review to determine the sufficiency of the application and its general consistency with applicable standards and criteria. An initial technical review is also performed to assess the maximum potential emissions of the proposed activity. This analysis determines whether or not a permit is required.

If a permit is required, a detailed technical review is conducted to determine the extent of any adverse impacts resulting from the proposed emissions levels. This review may consist of several components, depending on the source, and may include consideration of technically feasible alternatives. The review addresses cumulative impacts of emissions of criteria pollutants, such as particulates (soot), sulfur oxides, and nitrogen oxides. During this review, a draft permit, which may contain operating limits and conditions, is written.

When the technical review is completed, the commissioner makes a tentative determination to grant or deny the permit application and the permit fee is calculated and billed. The applicant must publish a notice of the tentative determination in a local newspaper and public comments are accepted on it for 30 days following publication. DEP may require an applicant to post a sign on the site or to provide any other reasonable form of notice necessary to inform the public and abutting landowners of the proposed activity. Upon petition by 25 or more individuals, DEP must hold a hearing on the tentative determination. According to DEP staff, hearing are routinely requested and held for power plant applications. After the hearing is closed DEP issues a final decision on the permit application, taking into account the comments made at the public hearing.

Water Permits

Power plants can require a variety of DEP water permits, including diversion, wetland, and water discharge permits. The DEP review process for these permits is similar to that described above for air permits.

Diversions. A plant needs a diversion permit if it will require new wells or withdrawals from aquifers or surface water supplies that result in a diversion of more than 50,000 gallons in any 24-hour period. On the other hand, a plant will not need a diversion permit if it will use potable water or treated wastewater.

The process for reviewing a diversion permit is quite similar to that used for air permits. The DEP technical review evaluates the documentation provided in the application and assesses the site and the anticipated effects of the proposed diversion. The application is also reviewed by DEP's Fisheries and Wildlife Divisions and the Natural Diversity database staff and forwarded to the departments of Public Utility Control and Public Health.

As is the case with air permits, after the technical review is completed, the commissioner makes a tentative determination to grant or deny the permit application and a notice of the tentative determination is published in a local newspaper. If the determination proposes that a permit be issued, a draft permit with proposed terms, limitations, and conditions is made available for review and comment. Upon petition of 25 people, a public hearing must be held on the draft permit. DEP can also hold a hearing on its own initiative if it determines that the diversion would significantly affect long range water resource management or the environment or could impair proper management and use of the state's water resources.

After the hearing is closed DEP issues a final decision on the application, considering any public comments. Permits generally require that the diversion be constructed and begin operation within three years after their issuance. DEP establishes the permit's expiration date based on its consideration of existing uses and allocations of the water resources within the watershed and pertinent facts and circumstances particular to the proposed project. Further information about diversion permits is available at www.ct.gov/dep/cwp/view.asp?a=2709&q=324178&depNav_GID=1654.

In addition to a diversion permit, a power plant may need permits for its water intake structures. These permits are issued by DEP under its delegated authority under the federal Clean Water Act.

Wetlands. A plant will require a wetlands permit if it will affect a wetlands that is subject to the federal Clean Water Act. The process for issuing a wetlands permit is very similar to that described for the air permits.

Discharges. A plant needs a discharge permit if it discharges cooling water into surface water or a sewer system. The amount of discharge varies depending on the type of cooling system the plant uses. Historically, most power plants used and discharged millions of gallons of water per day for cooling. More recently, some plants have used closed cycle systems that reduce the amount of water used by more than 90% or have used air to cool the plant. The process for issuing a discharge permit is similar to that described for the air permits.

SITING COUNCIL PROCESS

A Siting Council certificate is required to build or modify most power plants. However, by law, the council must approve the following facilities by declaratory ruling:

1. generating facilities that use fuels other than coal or nuclear materials that are located on the site where a generating facility was operating before July 1, 2004;

2. generating facilities with a capacity of up to 65 megawatts located on a customer's premises, so long as the facility meets DEP air and water quality standards;

3. fuel cell facilities, unless the council determines that they will harm the environment; and

4. certain temporary generation facilities.

As noted above, all of the applications received by the council over the past five years have been for such facilities. In addition, the Siting Council does not have jurisdiction over certain small scale renewable energy and cogeneration facilities (the latter generate power and useful steam at the same time).

Pre-application Procedures

In addition to the provisions that apply in environmental justice communities, at least 60 days before filing an application for a Siting Council certificate, the applicant must consult with the municipality where the facility may be located concerning its proposed and alternative sites. The consultation with the municipality must at least include to good faith efforts to meet with the municipality's CEO. As part of the consultation, the applicant must give the CEO any technical reports concerning the public need, site selection process, and environmental effects of the proposed facility.

The municipality may hold public hearings and meetings it considers necessary to advise the applicant of its recommendations concerning the proposed facility. Within 60 days of the initial consultation, the municipality must issue its recommendations to the applicant.

Procedures Once an Application Is Filed

A copy of the application must be sent to a wide range of entities once it is filed with the council. The applicant must provide a copy of an application to each municipality where the facility may be located, including any alternative sites. Copies must be sent to the municipality's CEO, its planning, zoning, and conservation commissions and its inland wetland agency. Copies of the application must also be sent to:

1. the attorney general;

2. each member of the legislature whose district includes the proposed or alternative site of the facility;

3. any federal agency that has any jurisdiction over any matter that would be affected by the facility; and

4. the departments of Environmental Protection, Public Health, Public Utility Control, Economic and Community Development, and Transportation, the Council on Environmental Quality, and the Office of Policy and Management;

For all energy and telecommunications facilities regulated by the council, notice of the application must be provided to local newspapers. For generating and electric substation facilities, additional notice must be provided to each owner of property that abuts the proposed primary or alternative sites where the facility would be located.

If the facility falls within the council's jurisdiction, the council will establish a contested case proceeding on the application. For generating facilities, the council must issue its decision within 12 months of receipt of an application, extendable by 180 days upon consent of the applicant. 
 

A person or group interested in a proceeding may participate as a party, intervenor, or as member of the public. Parties to the proceeding include the applicant; each person entitled to receive a copy of the application who files a notice of intent to be a party;

any nonprofit group formed to promote conservation or natural beauty, to protect the environment, personal health or biological values, to preserve historical sites, to promote consumer interests, to represent commercial and industrial groups, or to promote the orderly development of the areas in which the facility is to be located, if it files a notice of intent to be a party. The council can permit other persons to become parties. These individuals and entities are also eligible to be parties in declaratory ruling proceedings.

Parties can file pre-hearing questions to the applicant or other parties or intervenors; present testimony at the hearing; cross-examine witnesses at the hearing; and file exhibits, briefs, and proposed findings of fact. In addition, parties receive service of all filings in the proceeding.

Parties must:

1. respond to pre-hearing questions filed by the council, the applicant, or other parties or intervenors;

2. submit to cross-examination from these participants;

3. give the council an original and 20 copies of all filings; and

4. give the applicant and all other participants parties one copy of all filings.

Intervenors to the proceeding can include any person if the council finds that the petitioner's participation is in the interests of justice and will not impair the orderly conduct of the proceeding. Intervenors generally have the same rights and responsibilities as parties.

Anyone who is not a party or intervenor may make an oral statement at the public hearing or file a written statement at any time during a proceeding within 30 days after the close of the hearing. Evening hearings are reserved for members of the public to make oral statements. All statements are recorded and entered into a written transcript that is part of the record.

The public hearing generally consists of:

1. An opening statement by the council chairman;

2. testimony by applicant and cross-examination by the council and parties and intervenors;

3. testimony by parties and intervenors and cross-examination by the council and other participants;

4. public statements made during an evening session reserved for these statements; and

5. rebuttal by applicant.

The council conducts one or more public field reviews of the proposed electric facility sites to visually assess the site and surrounding land uses. It prepares a document consisting of draft findings of fact, opinion, and decision and order. The council considers this document at publicly noticed meetings. The public may attend these meetings to observe council deliberations. After the council issues this document, parties and intervenors may identify errors or inconsistencies between it and the record but the council will not consider new information, evidence, argument, or reply briefs.

The council's certificate takes the place of all certifications, approvals, and other requirements of state and municipal agencies regarding the public need, convenience, and necessity for the facility. But the host municipality can regulate and restrict the location of generation and substation facilities. All municipal orders to regulate and restrict electric generation and substation facilities must be made in writing within 30 days of any application. The order must be recorded in the municipality's records and written notice of any order must be given to each affected party. Each order can be appealed to the council by any aggrieved party within 30 days. The council can affirm, modify, or revoke the municipal order or make a substitute order by a vote of six of the council's nine members.

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