Minutes of the September 19, 2018 meeting of the Council on Environmental Quality held in the Holcombe Room on the fifth floor of 79 Elm Street in Hartford.
MEMBERS PRESENT: Susan Merrow (Chair), Janet Brooks, Alicea Charamut, Lee Dunbar, Alison Hilding, Kip Kolesinskas, Matt Reiser, Charles Vidich ALSO IN ATTENDANCE: Peter Hearn (Environmental Analyst) At 9:37 AM, Chair Merrow convened the meeting, noting a quorum. Approval of Agenda Chair Merrow said she knows that Charamut, who had not yet arrived, wished to add to the agenda a discussion of the proposed sale of the Connecticut Water Company. She proposed adding it under “other business”. Dunbar made a motion to add that topic to the agenda. It was seconded by Vidich and approved unanimously. Approval of Minutes of August 22, 2018 Chair Merrow asked if there are any changes to the minutes of the August 22, 2018 meeting. None were offered. Hearn said that, prior to the meeting, Reiser had submitted some formatting and spacing corrections that would be made. A short discussion followed on whether it is appropriate to use the “&” symbol in the name of the Department of Energy and Environmental Protection (DEEP), since both appear on DEEP’s website. Brooks said that the proper name to use is the name that appears in its establishing legislation. Vidich made a motion to approve the modified minutes which was seconded by Kolesinskas and approved. Reiser abstained, having been absent at that meeting. Charamut arrived during this discussion. Chair’s Report Chair Merrow noted the report at each member’s chair is the Council’s submission for the State’s Digest of Administrative Reports to the Governor. It is a summary of the Council’s accomplishments that is worth reviewing. Chair Merrow said the Council has selected an intern for the semester. He is Rafal Szacilowsk from Trinity College. He spent a semester at the University of Vienna and is multi-lingual. Hearn said his interest is international environmental law. He will start next week. Citizen Comment Period Chair Merrow welcomed Mr. Robert Panko, Vice President of Friends of Pachaug Forest. He had come to ask the Council, with regard to the Freedom of Information Law, who decides what is subject to disclosure under the law. He also voiced the concern of residents that the project could morph into a larger installation since the State plans to acquire 100 acres for a facility that needs only 30 acres. He asked what alternatives must be considered in an Environmental Impact Evaluation (EIE). Hearn said that the EIE must include an analysis of alternatives, including a “no-build” alternative. Hilding arrived during Mr. Panko’s comments. Staff Report a. Update on UConn “Chem Pit” monitoring decision Hearn reported that Mr. Warzecha told him that he had not yet responded to the request by the Town of Mansfield that the Department of Energy and Environmental Protection (DEEP) require the continuation of bi-annual sampling at the University of Connecticut (UConn) Chemical Pit. Mr. Warzecha said he prefers to be in contact with the town before speaking to the Council. Among the options he is considering is reducing sampling at only some locations or for only some analytes. Hilding asked if Mr. Warzecha was aware of the minutes of Mansfield’s Conservation Commission’s that expressed opposition to a reduced monitoring frequency. Hearn said that Mr. Warzecha was aware of opposition by the town, but did not know how he became aware of it. Hilding asked Hearn to deliver to Mr. Warzecha a copy of a letter from the Mansfield Conservation Commission that identified an unacceptable concentration of Tetrahydrofuran (THF) at one of the monitoring wells. Hearn said he would convey that to Mr. Warzecha. Hearn said he had been promised the monitoring results for the UConn wells and would request the data again.
Reiser said that a mandated 30-year monitoring period for landfills is not uncommon, and it is often the case that requests are made to discontinue some monitoring when the sample results indicate that to be an appropriate action. Dunbar agreed and said that the discretion to discontinue monitoring is entirely in the hands of the DEEP Commissioner.
Chair Merrow made the point that Mr. Warzecha’s email response to Hearn did not address the Council’s specific question. The Council did not ask for his decision about the monitoring, but had invited him to speak to the question of the role that climate change and increasing development has in decisions about whether to halt monitoring at a location. She said the question about what considerations go into a decision to halt monitoring should remain as a future agenda item.
b. FOI requirements regarding inspection of public records held by contractors to state agencies Referencing correspondence that had been provided to the Council prior to the meeting, Hearn said Chair Merrow had emailed Commissioner Currey of the Department of Administrative Services (DAS) pointing out the problem of public access to public records when those records are in the possession of a contractor to the State. The email described what the Council had done to improve public notice. Hearn said the Commissioner responded (letter from Commissioner Currey, dated August 29, 2018) that any record developed in connection with the Environmental Impact Evaluation (EIE) for the proposed State Police Training Facility will be deemed draft or preliminary work product and will be withheld. Because this seemed an overly broad interpretation of the Freedom of Information Act (FOIA), Hearn asked the Freedom of Information Commission for an opinion on that assertion. The Freedom of Information Commission responded that written public comments should be available to anyone who asks for them. Chair Merrow asked Mr. Panko of the Friends of Pachaug Forest to recount his group’s experience at the contractor for DAS. Mr. Panko described what he had asked for. Dunbar said that while some of the group’s requests were not covered by FOIA, an agency must provide any requested documents that are subject to disclosure. Kolesinskas expressed disappointment that the Commissioner’s letter did not discuss the FOIA process with regard to the requested documents. Brooks said the FOIA is designed to guarantee public access to meetings as observers, and to allow the public to obtain or review public documents. What the Friends of Pachaug Forest asked for fell into four categories. Only one of the four is subject to release under the FOIA. Vidich said that when he was in government, all communication would go to the agency and then to the contractor. That way, the agency was in control of all the records. Brooks said that in 2018 records are electronic and there is no reason they cannot be made available, easily, to the public. She said the FOIA Commission should be asked if it has encountered similar situations in either local or State government. Hearn said that the DAS has not yet been asked directly for the records in question and, despite the Commissioner’s claim in the letter and the confusing Scoping Notice for the project, it might be better to wait until there is an actual denial. Chair Merrow volunteered to send a polite inquiry to FOI Commission asking about precedent. All agreed that should be done.
c. Workload management and status of personnel search Hearn reported that he learned on Monday from Human Resources that a request to approve the Council’s Executive Director position and salary had been sent to DAS. The DAS liaison recommended approval and sent it on for further review. Chair Merrow said that Council members are concerned that the workload is excessive and have volunteered assistance. Hearn said he is managing now, but is most concerned about the end of the year when it will be time to produce the Annual Report. He does not see how the report can be written and the normal course of business be accomplished by a single person. Dunbar offered to act as a reviewer for the annual report. Hearn added that having the new student intern will help in the short-term. In response to a question form Dunbar, he said that he has some tasks in mind for the intern, depending on what projects the Council chooses to move forward with today.
d. Changes to website Hearn showed the Council the current edition of the Environmental Monitor which included the first Scoping Notice that had contact information for an agency’s FOIA liaison.
e. Administrative Report to the Governor This had been discussed at the beginning of the meeting.
f. Model Fracking Ordinances Chair Merrow described the existing State law banning disposal of fracking waste. The ban was to remain in place until DEEP developed regulations for disposal. The law gave DEEP a deadline of July 1, 2018, which was not met. She said there are now two different model ordinances being circulated to towns in the state. One was from Food and Water Watch. It is the more restrictive of the two and has been adopted by many towns. The Connecticut Council of Municipalities is now circulating one that more closely resembles the existing state law. It was the opinion of the Council that municipal ordinances are beyond the purview of the Council’s legislative charge. Consequently, a recommendation regarding the ordinances would not be made.
Citizen Complaints
Hearn described the complaints that had been received and their resolution.
Other Business Charamut expressed her concerns regarding the substance and process of the review of the proposed sale of the Connecticut Water Company to a California company. She identified the principals and described the process that had transpired thus far. She expressed frustration with the website of the Public Utilities Regulatory Authority (PURA), which did not make clear the scheduled hearing date far enough in advance for the public to participate. It also does not make clear the closing deadlines for receipt of comments. She reported that a proponent of the sale has made assurances that Connecticut Water’s conservation practices would remain in place, but Charamut could not find that assurance in the actual sale agreement. She said there is no restriction on use of the water outside of the established service area. Hilding expressed concern that the acquisition by a multi-state entity could result in increased rates in Connecticut to subsidize operations in other states. Charamut’s greatest concern is that Connecticut Water Company’s registered diversions will transfer with the sale. Those registrations allow the company to run a stream dry. A foreign-owned company will not be subject to local pressures to retain a minimum stream flow. She said that although PURA asked for a list of the diversion permits that are held by the Connecticut Water Company, it never asked for its list of registered (grandfathered) diversions. A complicating factor is that the Water Planning Council (WPC) is not taking public comment on the sale because one of the WPC members also is a member of PURA who must avoid ex parte communications. Dunbar said that another concern is the suggestion in the agreement that the Connecticut Water Company owns the water. He said it doesn’t. This is a reprise of the “public trust” debate that must be addressed. Kolesinskas said that, in reality, the sale is a sale of a customer list. Connecticut Water does not own the water, which is a public trust, and that must be made clear. He said that unlike in California, where the purchaser is located, water is not owned in Connecticut. Reiser said that comment on the issue of public trust is warranted. Chair Merrow asked if Charamut would draft talking points that would address the issues of public trust and its implications in this agreement, which would be sent to all members for edit before release. All agreed. There being no further business, Merrow asked for a motion to adjourn, which was made by Dunbar and seconded by Vidich. The meeting adjourned at 11:49AM.
