Minutes of the February 25, 2014 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room on the fifth floor of 79 Elm Street in Hartford.

PRESENT: Susan Merrow (Chair), Janet P. Brooks (by phone), Lee Dunbar, Karyl Lee Hall, Alison Hilding, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst)

At 9:35 AM, Chair Merrow noted that a quorum was not present but there were members of the public who had come to present issues to the Council. She suggested that they begin their presentations, since most of the Council was present and Janet Brooks, who was scheduled to participate by phone at 10AM, could be brought current when she called. The members agreed.

Chair’s Report

Chair Merrow noted with regret that Richard Sherman, who had been a member of the Council for many years, spanning two separate terms, had submitted his resignation. Hall suggested that the Council give special recognition of his long service and dedication. The other members concurred that this would be appropriate.

Citizen’s Comment Period

Chair Merrow called the first speaker, Nicholas Harding, who is an attorney speaking for the Berkshire-Litchfield Environmental Council (BLEC). Mr. Harding introduced himself as a member of Reid and Riege PC who is representing BLEC in a lawsuit against the Department of Energy and Environmental Protection (DEEP). In the suit, BLEC is asking the court to set aside a consent order agreement between DEEP and BNE Energy Inc. (BNE). The order required BNE to pay $10,000 in damages and monitor the clear cut in state forest property in Canaan. Mr. Harding contended that Commissioner Esty lacked the authority to enter into a consent order in this circumstance. He said the legislature passed CGS Section 52-560a specifically to deal with encroachments on state property after publication by the Council of its report “Preserved But Not Protected”. That law specifies that the office of the Attorney General (AG) is the sole authority in these cases. He said the law does not give the DEEP commissioner discretion in such a case; it must be referred to the AG. Further, the order does not mitigate the damage, as provided in the law.

Mr. Harding said that he would also be testifying before the legislature on changes to CGS 52-560a which would make it a more effective deterrent to encroachment on state lands. He had come to the Council to ask if it would submit an amicus brief and whether it would support the legislation he is recommending. Chair Merrow asked Wagener to report on what he had learned about the Council’s ability to submit such a brief. Wagener said the Council had never participated in a legal action of that nature. If the Council wished to do so it would be represented by the AG. Before that could happen a determination would have to be made by the AG if such a suit is within the Council’s statutory authority. Discussion followed regarding the circumstances that led to the clear cut, the specifics of the consent order, and the provisions of CGS Section 52-560a.

Brooks then joined the meeting by speaker phone (10:05 AM), constituting a quorum.

Chair Merrow said she would like to return to the issue of the BLEC suit later in the meeting and that further action on Mr. Harding’s request be postponed until then.

Chair Merrow called the next speaker, Margaret Miner, Executive Director of the Rivers Alliance. Ms. Miner was accompanied by Tony Mitchell who handed out a list of violations at the three facilities in the state that have permits to receive and treat hazardous wastes. She explained that the research is a consequence of prior discussions regarding the possibility that fracking waste could be disposed of safely at the facilities that treat hazardous waste in the state. The documents she presented showed that these facilities had a large number of violations of their permits. The Council had many questions regarding how the discharge limits are arrived at and the relationship between these treatment facilities and the sewage treatment plants to which they send their waste. Dunbar explained how limits can be set for a permit and the potential damage that can be done to a treatment plant by some violations of effluent limits. Ms. Miner said that these facilities are only inspected every two years. Most of the violations are from self-reporting by the facilities. She said she believes that in-person inspections could be more effective and that there is not sufficient staff at DEEP to perform them.

Merrow asked Ms. Miner what she plans for this research. Ms. Miner replied that she would like to issue a report and would like to see the Council add some of it to its annual report. Chair Merrow complemented Ms. Miner and Mr. Mitchell on the research and for bringing the information to the Council.

Approval of Agenda and Approval of December Minutes

Before proceeding with the business portion, of the meeting Chair Merrow asked that the agenda be approved. Hall made a motion to approve the agenda that was seconded by Dunbar and unanimously approved. Next, Chair Merrow asked for a motion to approve the minutes of the December 17, 2014 meeting. This motion was made by Dunbar and seconded by Hall and was also approved unanimously.

Discussion of Proposed Budget and Transfer

Wagener outlined for the Council the proposal in the Governor’s budget to transfer the Council to the Office of Legislative Management (OLM). There is no funding for such a move, since the Governor lacks the authority to amend the budget for the legislative branch. He said OLM had not anticipated this and had requested no funding for such an eventuality. After considerable discussion, the Council agreed that independence has been key to the Council’s integrity and objectivity and that it must be maintained. It was also agreed that the Council could not do its work without staff. Dunbar said that if the Council maintains its staff there is no cost savings to relocation and, since most of the Council’s work involves DEEP, it is most efficient to keep it where it is presently located. Chair Merrow said that it appeared to be the consensus of the Council that the Council’s testimony at the public hearings should assert that 1) Funding and independence are the first priorities, and 2) the present structure and location within state government has proved to be the most efficient and practical option. Dunbar made the motion that such is the Council’s position and the Chair should so testify. This was seconded by Hall and approved unanimously. Brooks added that she would be happy if the Council retained its existing location, but that independence is the more important of the two. Chair Merrow told the members that there is a public hearing on Monday before the Appropriations Committee at which she will testify as directed.

Discussion of Annual Report Topics

Brooks said she had already told Wagener of her major concerns about the report. For other issues she was willing to rely on the conclusions of the other members. Dunbar made a motion to approve the annual report for publication and submittal to the governor, with the Chair authorized to approve any minor edits made by staff pursuant to the discussion at the meeting. The motion was seconded by Hall and approved unanimously.

Hall asked that before Brooks get off the speaker phone she express her opinion on the two questions raised by BLEC – whether the Council would join the Amicus brief and whether it would testify on behalf of BLEC’s proposed bill. Brooks said she is absolutely opposed to filing an amicus brief. She has no strong opinion about the proposed bill, but did note that it is based on the supposition that the AG will be a more strident defender of the state’s rights than the DEEP commissioner. She is not certain this would be the case into the future. She said she would defer to the Council regarding the bill.

Chair Merrow said there is not an imminent deadline on the amicus question so immediate action is not required. Much discussion followed regarding the pros and cons of the bill proposed by BLEC. In the end it was decided by consensus that Wagener should offer testimony on the shortcomings of the existing law and suggestions of how it could be strengthened based on the general principles of transparency and more opportunity for public participation.

Discussion returned to the Annual Report. Wagener displayed several pages that had been changed since the Council last saw the report, and several editorial suggestions were offered. There was agreement that the information on land preservation and impaired stream data should be linked. There also was agreement that pages which have no new data should be abridged substantially and should include a link provided to last year's report.

Lastly, the Council reviewed the introductory pages of the report, which had been sent to them before the meeting, and made suggestions.

Chair Merrow concluded the meeting with a discussion of the vacancies on the Council.

At 12:08 Hilding made a motion to adjourn that was seconded by Hall. The meeting adjourned.