Minutes of the April 24, 2013 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room on the fifth floor of 79 Elm Street in Hartford.

PRESENT: Janet Brooks, Lee E. Dunbar, Karyl Lee Hall, Alison Hilding, Michael W. Klemens, Susan D. Merrow, James O’Donnell, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst), Courtney Robishaw (Intern).  

At 9:07 AM, Sherman made a motion to nominate Brooks as chair for the day. Second by Hall. Approved unanimously. Acting Chair Brooks noted there was a quorum present and called the meeting to order. Merrow arrived.

Acting Chair Brooks asked if there were any changes or additions to the minutes of the March meeting. There were none. Sherman made a motion to approve the March minutes. It was seconded by Hall and passed without objection. Dunbar, Klemens and O’Donnell abstained because they had not been present at the March meeting.

Acting Chair Brooks said she would like to begin the meeting introducing the newly appointed members to the Council. Members introduced themselves.

Acting Chair Brooks asked Wagener for the Executive Director’s Report.

Executive Director’s Report

Wagener reported that on Friday the Appropriations Committee adopted a budget that put the Council within the Office of Government Accountability (OGA) and with only one staff person. Legislators said during the meeting that that this had been unintentional and would be changed. Wagener said that on Monday substitute language for the implementing legislation was approved that, to his knowledge, kept the Council in the Department of Energy and Environmental Protection (DEEP) for administrative purposes only. The discrepancy between the two actions will have to be resolved, Wagener said.

Regarding other budget items, Wagener reported that funding for a number of environmental priorities remains in the capital budget. The Community Investment Act funds will not be diverted to other purposes, and funds for open space acquisition, farmland preservation and the Clean Water Fund were maintained or increased. He said he was told by legislators that the Outdoor Wood Furnaces bill would be a priority.

Wagener said that there is much interest in the proposal to amend the Connecticut Environmental Protection Act (CGS Sections 22a-16 through 22a-19). Acting Chair Brooks said that there are interests looking to restrict the scope and breadth it allows ordinary citizens wishing to intervene in public proceedings. Among the suggestions are changes to require disclosure of whether an intervenor is a competitor to a party in the proceeding and the imposition of strict time limits on when intervention could occur. Wagener, Hall and Merrow mentioned some of the parties that are involved in discussions regarding this. Merrow said that in last year’s debates some of the most vocal parties were big developers who faced opposition from other developers, and suggested that the interests of the individual citizen were not given appropriate attention.

Klemens added that developers are seeking a “safe harbor” protection that would allow them immunity from quarterly updates of the state’s Natural Diversity Data Base which could “discover” threatened or endangered species at the site. He said this would not be necessary if developers invested in a thorough and rigorous field study at the onset of the project. Merrow and Hall discussed the history and status of a bill that would deregulate construction of seawalls.

Wagener said that he met with Commissioner Esty and representatives of environmental organizations in the previous week. He said that at the meeting the Commissioner referenced the letter produced by DEEP in response to Council’s request for its opinion on the applicability of Connecticut’s underground injection control regulations to fracking and disposal of fracking waste. Acting Chair Brooks said a thorough discussion of this topic is warranted and asked for a motion to amend the agenda to add discussion of the fracking issue later in the meeting. Hall offered that motion which was seconded by Klemens and approved unanimously.

Wagener recounted some of the bills of interest to the environmental advocates at that meeting, including bills dealing with ATVs, pesticides, remediation and land conveyances.

Wagener concluded with a few announcements. Former Council member John Mandyck has been appointed Chairman of the World Green Buildings Council Advisory Board. He said that the office had received a copy of the Connecticut Audubon Society’s annual “State of the Birds” report, which is titled “The Seventh Habitat and the Decline in Aerial Insectivores”. Wagener said he would like to use that report in the coming year.

Discussion of Annual Report Topics

Wagener reported that he met with Commissioner Esty and senior DEEP staff to discuss the Council’s annual report, and summarized some of their comments and suggestions. DEEP staff would have preferred that some indicators be “normalized” to account for intervening variables, like rising temperatures, that have impeded progress. Klemens said that environmental variables are rarely isolated and always contain “noise” that can be difficult to filter. O’Donnell said that generally an intervening factor like climate will distort data in different directions in different years. Hall said the purpose of the report is to show effect, not effort. If climate is distorting the effectiveness of the effort than it is the effect that is important to the public, and added effort may be appropriate. Wagener said the report makes it clear in many places that annual data and long term trends are different and both need to be looked at by the reader.

Dunbar said the next report should be written so as not to unintentionally suggest a bias in favor of public water over individual wells. With regard to hypoxia in Long Island Sound, he said it is clear that the nitrogen-reduction efforts have been successful, since the nitrogen reduction goals have been met ahead of schedule, but hypoxia continues for a number of reasons. Klemens said a discussion of the complex links among the contributing variables would be worth adding to next year’s report. Some of the confounding variables are simply beyond the capacity of the state to control. O’Donnell said the metrics reflect outcomes, not effort. Hall said that effort has not been a measure used by the Council. Sherman and Acting Chair Brooks said that opening a discussion with DEEP on these topics is a good idea. Sherman said it should be possible for the report to identify contributing factors that reduce effectiveness of environmental programs, but the Council must be vigilant to not compromise its independence in analysis. Wagener said DEEP is developing metrics of its own and is willing to share information. O’Donnell said the US Environmental Protection Agency is also trying to create new metrics to measure environmental change on the east coast. Those could be useful as well. Members agreed that new indicators can be added and existing ones analyzed at future Council meetings, and the Council should continue its practice of evaluating individual indicators with its “Indicator of the Month” agenda item. Sherman suggested, and the others concurred, that the Council would welcome further exchange with DEEP on metrics.

Wagener said that staff followed up on some of the questions raised recently by DEEP, Council members and others. He said that a review of air quality and meteorological data by Robishaw showed that, contrary to conventional wisdom, there were many days in 2012 when the ozone level violated standards but the air temperature was not excessively high. Robishaw reported on her data; she said that when she brought the data to DEEP air staff they explained that the presence of ozone in the state was due to the complex mixing of locally generated ozone with ozone transported from other states. This transport combined with atmospheric cooling from the Long Island Sound and thermal capping lead to ozone being high in the state even when temperatures were not extreme. She added that she adjusted the data to take into account the differences between where ozone is measured and temperature is recorded. O’Donnell agreed that there can be violation-level ozone levels without there being temperatures in the high nineties; he said reporting of the daily maximums as the temperature for the day could exaggerate the link between temperature and ozone.

Wagener asked Robishaw to report on how Connecticut ranked relative to other states with regard to the percentage of rivers and streams suitable for contact recreation. She said the figures were difficult to find but that compared to neighboring states, Connecticut ranked relatively low (i.e., not good). Wagener said that comparisons of performance in Connecticut compared to neighboring states could be an interesting addition to a future report. Dunbar said that differences among states are related to the amount of impervious cover and farmland but also to differences in sampling methodologies or standards. Wagener said he would like to discuss this further with him.

Wagener thanked Robishaw for her work. He added that Robishaw’s technological skills led to the breakthrough that allowed the annual report to be viewed interactively on mobile platforms. Acting Chair Brooks thanked Robishaw for the important contributions she made during her internship.

Wagener said that there had been questions raised at the March Council meeting as to why recycling was lagging, and said that Hearn attended a meeting of the Solid Waste Advisory Committee where recycling at multi-family housing was on the agenda. Hearn said that there are effectively no funds available within DEEP for educating owners, managers and residents of large commercial apartments and office buildings about their obligation under law to recycle. He said that DEEP is dependent on the trash haulers to make that obligation known to their clients. He said that education can be provided by Notices of Violation when they are issued. These notices have no penalty attached and staff at DEEP has expressed frustration at lack of enforcement options for willful violations. Municipalities often have recycling ordinances; rates of municipal enforcement are not known.

Review of State Agency Actions

Siting Council Consultation re: telecommunications tower in Canaan (Falls Village), re-opening of docket – Wagener referred the Council to the draft comments that had been sent prior to the meeting. He explained that he did not find that the site exhibited any changed conditions so he annotated and referenced the Council’s prior comments regarding the proposed tower on Cobble Hill. Acting Chair Brooks said that representatives of the town where the proposed tower would be located were present; she invited them to introduce themselves and express their concerns. Ellery Sinclair and Susan Kelsey, representatives of the Canaan Inland Wetlands and Conservation Commission, spoke of the unique ecological importance of Cobble Hill, the proposed site of the tower. They described its topographical fragility, its scenic importance and the years of effort to protect it. Hall asked what is the “changed condition” if the proposed new tower is going on the same mountain as the old one that had been rejected by the Connecticut Siting Council (CSC). They responded that a Federal Communications Commission (FCC) report had identified a number of underserved rural areas, including parts of Canaan, as priorities for expanded service. Melanie Bachman, attorney for CSC explained from the audience that any person can file a motion to reopen a contested case and argue that there are changed conditions. The CSC holds a hearing to determine if changed conditions actually exist. That hearing is scheduled for April 30, 2013, and the CSC will hear evidence on both the question of changed conditions and substantive concerns. Klemens said that he lives in the neighboring town and is familiar with the site. He said that from an ecological perspective the proposed new location is worse that the originally proposed site, and described the unique habitats present. He suggested that if ever there was an area of unique regional ecological significance this is it. Wagener added that the state has invested much time and money preserving the areas that surround the site. Acting Chair Brooks said she would like to see the comments amended to emphasize the unique and iconic status of Cobble Hill. Hall and Merrow agreed. Dunbar suggested that the comments address the question of changed conditions first, and include substantive comments in case the CSC finds changed conditions. Brooks asked for a motion to send the comments after modifying them to clarify the Council’s message that it is the CSC’s prerogative to decide if there has been a change of condition according to administrative law and that the adverse environmental effects are exacerbated by the proposed new location, and that the language about changed conditions should remain in the comments but restructured as indicated. Second by O’Donnell. Approved unanimously.

Renewable Portfolio Standard Draft Study, DEEP – Wagener said that the recommendation of this draft report getting the most attention is the one to include large scale hydropower as a Class One renewable energy source. This would make such power eligible to utilities that must meet mandates requiring a percentage of renewable energy sources in their portfolio of energy supplies.  Wagener said the Council received complaints about the fact that DEEP released the study late, then testified before the legislature on its recommendations before the 30 day comment period on the report had expired. He said the comment period is now closed and a bill had been approved by the Energy and Technology Committee. After considerable discussion, members concurred with Brooks, Merrow, and Dunbar that the message that needs to be conveyed is that it is important to get this decision correct, and further analysis might be required.

Klemens and Sherman noted that the recommendation regarding large scale hydro proceeded without input from the public that could have been of value. Dunbar said the recommendation is exactly what big utilities want.


Hydraulic Fracturing (Fracking)

Members discussed the April 5, 2013 letter from Commissioner Esty that responded to the Council’s October 3, 2012 letter. Klemens said the qualifications in the language made him think a law to prohibit fracking is needed to make it clear what its status actually is in Connecticut. Acting Chair Brooks said she found the letter from Commissioner Esty well crafted to fairly present the legal issues and probable inferences that can be drawn from Connecticut’s regulations. Wagener said that there is no urgency for this to be considered at this meeting, as the active legislation addresses only fracking wastes, not fracking, which was not the case when the original letter was written. Members agreed to discuss this at the next meeting. Klemens asked staff to send him the earlier Council memos on the issue in the meantime.

At 11:59 Acting Chair Brooks adjourned the meeting.