Response to Legislative Program Review and Investigations Recommendations
February 2, 2001
Page
Appendix E
Agency Response
February 2, 2001
Mr. Michael L. Nauer
Director
Legislative Program Review
and Investigations Committee
State Capitol, Rm. 506
Hartford, CT 06106
Dear Mr. Nauer:
The Connecticut Siting Council (Council) compliments the Legislative Program Review and Investigations Committee (Committee) on their thorough investigation of the Council. Furthermore, the analysis conducted by your staff was thoughtful and responsive to the public. The Council does, however, have some comments and responses to the draft report issued by the Committee on December 5, 2000, as follows:
CSC PROCESS AND OUTCOMES
RECOMMENDATIONS
1. The council must advertise its public hearing notice at least once within the two week period prior to the actual hearing date.
The Council is in agreement that hearing notices can and often do precede the hearing by several weeks. However, the Council publishes its hearing notices as soon as the hearing is established to allow all interested persons an opportunity to participate in discovery prior to the hearing. This time before the hearing enables the Council to review letters from members of the public, and allow parties and intervenors an opportunity to ask pre-hearing interrogatories with responses due prior to the hearing. The purpose of this discovery process is to increase participation and allow more factual evidence to be brought into the record prior to the hearing, thus preserving valuable hearing time for cross-examination and statements by members of the public. Existing procedures for notification include public notice of application required of the applicant, service of the application to state and local officials, notice to abutting property owners when required, notice of the hearing by the Council, a noticed pre-hearing conference, scheduled discovery including pre-hearing interrogatories, and varying degrees of coverage by the press which frequently reports on Council activities. The Council believes that these notice procedures are currently more than adequate to ensure public participation.
Nonetheless, the Council does not object to a second notice two weeks in advance of the hearing. This provision may cost approximately $2,000 based on a review of notice invoices from the last six dockets. The public and applicants may be concerned with this total notice expense, which could exceed $6,000 per application when considering the public notice of the application required of the applicant, two public notices of the hearing required of the Council, and public notice of the decision required of the Council.
The Council would suggest a statutory change by the Committee if this recommendation were finalized. As an alternative to a statutorily required second notice, the Council suggests use of a press release to local papers and community access television two weeks prior to the hearing. Such press release could substantially serve as a reminder of the hearing without adding any substantial cost to the proceeding.
2a. Written council decisions should be structured in a format that clearly outlines the criteria used and provides evidence of independent analysis. Council decisions should state with particularity the basis for each decision as to each disputed issue, and the manner in which the statutory criteria were considered in arriving at such decision, including where applicable, the specific evidence relied upon, and the reasons for the reliance.
The Council is in agreement with the Committee's investigation that independent analysis is undertaken by the Council, but evidence of this independent analysis is not always clear nor is it always documented in the Council's decision. The Council is concerned that the formal introduction of independent analyses by staff into a proceeding may require the sequestering of staff to be available for cross-examination. Development of such a process would expand the Council to include a prosecutorial division for this specific purpose. However, the Council believes that the essence of its analysis could be brought into a record in the form of discovery without the need for development of prosecutorial staff.
Nonetheless, the Council believes it can better describe independent analyses and discuss the statutory criteria, evidence, and reasons for reliance on such evidence in more detail in its written decisions. The Council would not object to this recommendation being developed as a statutory requirement; however, there may be sufficient statutory guidance to carry out this recommendation without additional change.
2b. The decisions should also contain more discussion as to the council position on opposing party claims and more explanation as to why alternatives are not chosen.
The Council is in agreement that its decisions can be expanded to discuss opposing party claims with more explanation as to why alternatives are not chosen. This recommendation could be developed as a statutory requirement, however, the Council believes that there is sufficient statutory guidance to carry out this recommendation without additional change.
3. A summary digest of council decisions must be developed and maintained by October 1, 2001.
The Council agrees that this recommendation might be of interest to persons reviewing Council decisions; however, the Council's charge is to base its decisions on statutory policy and facts of a unique site-specific record. Although some applications may have similarities and some decisions may have common language, it would be inappropriate for its decisions to become regimented only for the sake of consistency. Council members, including any new Council member, need only apply statutory policy with the facts of the record to carry out their responsibilities.
Furthermore, any review of Council decisions should focus on the actual decisions and not rely on a summary document that could be subject to personal interpretation. For this reason the Council maintains public files indexing all decisions by docket and/or petition number and alphabetically by town. These records are meticulously maintained for use by staff, Council members, and members of the public who seek to review Council decisions.
In addition, the development of a summary digest would require hundreds of hours of research to develop such a document for limited use and applicability. At the present time the Council does not have the staff or resources to develop this project and would respectfully request this recommendation be reconsidered.
CSC INTERACTION WITH MUNCIPALITIES & OTHER INTERESTED GROUPS
RECOMMENDATIONS
4. CSC must include in each decision a summary of any municipal consultation and recommendations.
The Council agrees with this recommendation that it would promote the sense that a municipal opinion had been reviewed and it would underscore the significance of the municipality's statutory role. This recommendation could be developed into a statutory requirement, however, the Council believes that this recommendation can be carried out now without additional statutory change.
5. CSC should establish a more structured schedule for follow-up and monitoring inspections and as much as possible incorporate other interested government agencies such as local municipal planning and zoning authorities or the state Department of Environmental Protection.
The Council is in general agreement that additional efforts to include the Department of Environmental Protection and municipal officials in construction and post-construction inspection would improve coordination with such government entities. However, the Council notes that it has not been established primarily as a monitoring agency and has very limited resources for regimented site inspections.
Furthermore, it appears that the purpose and nature of the Council was clearly understood during the survey undertaken by the Committee with 36% of municipalities reporting this provision was not applicable. Of the 63% of the towns that rated the follow up and monitoring of sited facilities as applicable, 62% rated the Council's performance as excellent or good (39% of the total), 86% rated the Council's performance as fair or better (54% of the total).
Nonetheless, the Council agrees that additional coordination with municipal and state officials can and should be undertaken. This recommendation could be developed as a statutory requirement; however, the Council can carry out this recommendation without additional statutory change. If, however, more detailed and regimented inspection schedules are desired by the legislature, the Council will be forced to increase its budget to hire additional staff.
CSC JURISDICTION
RECOMMENDATIONS
6. The program review committee recommended municipal planning and zoning boards have siting jurisdiction over PCS telecommunications facilities. The Connecticut Siting Council may participate as an intervenor in any such planning and zoning board proceedings. Municipal planning and zoning boards shall establish timeframes for these proceedings.
Although this recommendation attempts to achieve compliance with the Telecommunications Act of 1996, it will not address the problems associated with telecommunications facility siting. The problems that should be addressed directly include 1) development of a method to determine if and where new facilities are needed, and 2) development of a method to explore how alternatives and options to determine how and where facilities can be developed, if they are determined to be needed. We believe a more innovative solution with State oversight is necessary to address this problem. The shifting of jurisdiction between municipalities and the State does not address this problem. Furthermore, this proposed bill may tend to alienate municipalities from each other and the State.
A more innovative and comprehensive approach to directly address the problem would include the following provisions:
· Require the maintenance of a statewide database for the development of comprehensive telecommunications plans of development for municipalities upon request.
· Plan and regulate the infrastructure of telecommunications networks in a uniform and consistent manner for efficient deployment to avoid construction of unnecessary or inappropriate facilities.
· Structure jurisdiction in a way that takes advantage of municipal commission's knowledge of potential alternatives, land use, and local values.
· Structure jurisdiction in a way that provides State guidance and oversight to determine if and when facilities are needed.
· Structure jurisdiction in a way that allows both State and municipal regulators to take advantage of the strengths of each other for cooperative processing of shared applications.
· Improve communications between State and municipal regulators and the public with improved mechanisms for notice and preapplication consultation.
· Provide a streamlined process for applications that have been reviewed and deemed
acceptable by both State and municipal regulators.
A cooperative process based on comprehensive plans will provide:
· Higher quality, lower cost, and more competitive telecommunications.
· An efficient deployment of telecommunications facilities with the minimum number of towers necessary.
· The formation of a strong regulatory team that has technical expertise and knowledge of local land use to assess radio frequency propagation, multiple use of facilities, and assessment of alternatives.
· Improved radio frequency power density modeling to protect public health.
· Improved relationship between municipalities and the State with high quality decisions based on evidence.
· Lower cost to municipalities for technical consultation and legal representation.
The Council strongly encourages the committee to reconsider this recommendation and consider solutions to the problem of telecommunications facility siting; and not simply to address the symptoms that have arisen due to the existing regulatory structure which has been strained by bifurcation and obsolete jurisdiction.
7. CSC must develop a method of collecting information on all telecommunications towers in Connecticut, and establish and maintain a statewide inventory of these telecommunications towers.
The Council is in agreement that it can and in fact does function as a clearinghouse for tower information. This clearinghouse provides public and private entities information for tower sharing, consideration of alternatives, development of comprehensive plans, and tax assessment for municipal revenue. The Council has developed and maintains this database without legislative mandate, free of charge for public and private use. Nonetheless, the Council notes deficiencies including the development of municipal towers that do not get entered into this database unless such specific information is collected by the Council. The clearinghouse/database that the Council has developed includes a UNIX-based platform GIS system with combined databases from municipalities, DEP, the FCC, the FAA, information provided by private industry, information provided public service companies, and information obtained through staff investigations.
The Council would seek to continue with the operation of this clearinghouse database function; however, the Council must rely on the cooperation of municipal agencies for the downloading of information, state agencies which share data with the Council, federal agencies, and private vendors.
This recommendation could be developed as a statutory requirement, however, the Council can continue to undertake this recommendation without legislative change. If a substantial upgrading of this clearinghouse is sought, additional resources and staffing, as well as a statutory mandate, may be necessary.
The Council again thanks the Committee for their diligent and detailed investigation. The Council also thanks the Committee for its understanding and appreciation of the Council's role and responsibility to carry out this difficult legislative charge in an effective and efficient manner.
Very truly yours,
Mortimer A. Gelston
Chairman
Joel M. Rinebold
Executive Director
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