April 18, 2008
POWER PLANTS AND THE CONNECTICUT SITING COUNCIL
By: Kevin E. McCarthy, Principal Analyst
You asked the following questions regarding the Connecticut Siting Council's regulation of power plants:
1. who serves on the council for applications for these facilities,
2. how can people participate in the council's proceedings,
3. what is the role of host municipality in the siting process,
4. is there a timeline when the project needs approval from other agencies such as the Department of Public Utility Control (DPUC) or the Department of Environmental Protection (DEP), and
5. when can a facility developer exercise its power of eminent domain regarding the facility.
OLR report 2008-R-0275 addresses several related questions with regard to the Siting Council and ash landfills.
For power plants and other energy facilities, the council consists of five members appointed by the governor, two by legislative leaders, and the chairperson of the Department of Public Utility Control and the commissioner of the Department of Environmental Protection. The council's membership is different for other types of facilities under its jurisdiction.
People can participate in the council proceedings by becoming a party or intervenor or by making oral or written comments to the council. The former is the more formal and involved option.
Developers of power plants and other facilities under the Siting Council's jurisdiction must consult with the proposed host municipality before they submit their application to the council. However, with limited exceptions, the council has exclusive jurisdiction over the siting of these facilities.
Power plants typically need air and water permits from DEP. While they generally are not subject to DPUC regulation, several recent laws require DPUC to select generation projects for ratepayer funding. The law does not specify the order in which a power plant developer needs to obtain these permits, approvals, and the council certificate required to build a plant. In practice developers usually obtain a council certificate before applying for DEP permits.
Entities with eminent domain powers cannot exercise these powers with regard to power plants until they have received a council certificate. Nor can a power plant developer begin preparing a site for the plant or begin building it until it has obtained the certificate (CGS § 16-50-50k).
MEMBERSHIP OF THE SITING COUNCIL (CGS § 16-50J)
The composition of the Siting Council varies by the type of facility it is reviewing. For power plants and other energy facilities, such as transmission lines and substations, the council consists of nine members, five appointed by the governor (including the council's chairperson), one appointed by the Speaker of House, one appointed by the President Protempore of the Senate, the chairperson of the DPUC (Donald Downes), and the DEP commissioner (Gina McCarthy). By statute, at least two of the members appointed by the governor must be experienced in the field of ecology and no more than one member can be affiliated with any utility, government utility regulatory agency, or facility under the Council's jurisdiction. The governor's appointees are Daniel F. Caruso, (chairperson), Colin C. Tait (vice-chairperson), Philip T. Ashton, and James J. Murphy, Jr. Barbara Currier Bell and Daniel P. Lynch, Jr. are the appointees of the House speaker and Senate president pro tempore, respectively. Biographical information about the members is available at http://www.ct.gov/csc/cwp/view.asp?a=951&Q=248142.
participating in council proceedings (CGS §§ 16-50m and 16-50n)
People can participate in the council proceedings in two ways: (1) by becoming a party or intervenor or (2) by making oral or written comments to the council. A person cannot participate as a party or intervenor and through public comment.
There are two parts to the council hearing process, one designated for each method of participation; the public evidentiary hearing and the public comment hearing. Participation in the evidentiary hearing as a party or intervenor is a more formal option. The evidentiary hearings are typically held in the afternoon with the pubic hearing held in the evening. All participants are welcome to attend both the evidentiary and public comment hearings, but actual participation is limited to the appropriate session of the proceeding.
Participating as a party or intervenor allows for more in-depth involvement in the proceeding but also involves greater responsibility. To become a party or intervenor a person must file an application for council review. After reviewing the application the council will grant or deny it. The application to seek party or intervenor status may be obtained from this link Party/Intervenor Form.
People who receive the council's approval to become parties or intervenors participate in the evidentiary hearing. This type of involvement is more formal as the hearings involve the presentation of witnesses, the numbering of exhibits, requests for administrative notice, and the verification of all exhibits by appropriate witnesses. Witnesses are subject to cross-examination by the council and the parties and intervenors. Following cross-examination of the applicant, each party and intervenor may present their exhibits and witnesses and are subject to cross-examination by the council and other parties and intervenors.
Anyone who is not a party or intervenor may speak publicly at the public comment portion of the hearing or submit written comments to the council. (This is referred to as a “statement of limited appearance.”) Written comments must be submitted to the council within 30 days following the date of the public comment hearing. Both oral and written comments are entered into the public record for the proceeding and considered by council members. A person who wishes to participate in this way is not required to seek approval from the council for such participation or obligated by any other duties. A person does not have to have an attorney to speak or submit written comments at the public comment session.
The public comment session is held in the evening in the town or county of the proposed facility and no prior preparation is required. The public is invited to make short comments into the record at the outset of the session. These statements may identify facts, concerns, and issues that help the council decide the case. The council asks that any person seeking to make a public statement identify himself on a sign-up sheet that is available at the hearing session. The council chairperson usually calls first on public officials to make statements, followed by members of the public. The council requests all public officials and members of the public making public statements to be brief and courteous to other speakers. If there are a very large number of speakers, the council may set time limits for each person, in order to give everyone a chance to speak.
HOST MUNICIPALITIES' ROLE (CGS §§ 16-50L(C) AND 16-50X)
By law, 60 days before a facility developer can file an application with the council, it must consult with the municipality where the facility is proposed to be located (both the preferred and alternative sites) and with any adjoining municipality having a boundary not more than 2,500 feet from the proposed facility. The consultation must include good faith efforts to meet with the municipality's chief elected official. At the time of the consultation, the applicant must provide the chief elected official with any technical reports concerning the public need, the site selection process, and the environmental effects of the proposed facility. The municipality may conduct 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.
When the application is filed with the council, a copy of the application must be served on the chief elected official of each of these municipalities, and their respective zoning, planning, and conservation commissions and inland wetlands agencies. Each of these officials and agencies are entitled to participate as a party in the council's proceedings. Within 15 days of the application, the applicant must provide the council all the materials it provided to the municipalities in the consultation process and summary of the consultations, including the municipalities' recommendations.
The council must schedule a public hearing on an application. At least one session of the hearing must be held at a location selected by the council in the county where the facility will be located after 6:30 p.m. In practice, the council holds hearings in the municipality where a facility is proposed to be located.
Generally, the council has exclusive control over the location and type of facilities under its jurisdiction. However, a zoning commission or inland wetlands agency may regulate and restrict the proposed location of power plants and electric substations. (For example, a zoning commission can specify where a power plant can be located on the proposed site.) The local bodies may make all orders needed to exercise this power, which must be in writing and recorded in the records of their respective communities, with written notice of any order given to each affected party. The local body must make such orders (1) within 65 days after an application has been filed with the council for a power plant and (2) within 30 days after an application has been filed with the council for a substation. Each order is subject to the right of appeal to the council within 30 days. The council can affirm, modify or revoke the order or make another order by a vote of six of its members.