Legislative Program Review and Investigations Committee
Chapter I
Background Overview
Legislative History
Established in 1971, the Connecticut Siting Council was first created as the Power Facility Evaluation Council. The council's creation was in part to address growing public concern over the impact electric generating stations and power transmission lines were having on the environment. Prior to 1971, no regulatory proceedings were required concerning the placement of power lines and generating facilities other than the standardized approval of the technical manner of construction by the Department of Public Utility Control (DPUC). Until that time, most public utilities were granted the right of eminent domain, without restriction.
Historically, transmission lines were placed out of public view and routes were usually determined by the availability of undeveloped land. However, if necessary, utilities could exercise their right of eminent domain and take property needed for power plant siting and transmission lines. Utilities largely planned and developed system changes privately with little public input or notice.
In response to these concerns, the legislature passed the Public Utility Environmental Standards Act in 1971. The intent of the act was to provide a fair process for balancing the public need for adequate and reliable utility services with the need to protect the environment. The law required certain public utilities to come before the Power Facility Evaluation Council, a nine member board established by the act, and obtain a Certificate of Environmental Compatibility and Public Need for the construction of any facility. If a facility was to be modified and the council determined there could be an adverse environmental effect, a certificate was also required.
The regulatory powers of the council encompassed electric transmission lines with a design capacity of 69 or more kilovolts, fuel transmission facilities (pipelines), electric storage and generating facilities, substations, switchyards and other facilities established by regulation. The law also required the applicant to set forth detailed cost and environmental information in the application for a certificate concerning the proposed project.
Further, the act created a hearing process, giving party status to affected individuals. The final decision-making authority for issuing certificates was given to the council.
However, the act did not give the council exclusive jurisdiction in these regulatory areas. Towns had authority to issue permits under Connecticut's zoning statutes, thus creating a dual regulatory process. To eliminate this, the legislature in 1973 gave the council final jurisdiction over all matters relating to its statutory authority. While this statutory change did not preempt local regulatory bodies from issuing permits, it made local permits subject to appeal to the council which could override a local decision by two-thirds vote of the entire council.
Since its inception the council has undergone many changes, presented in the timeline in Figure I-1. Most statutory changes made between 1973 and 1976 dealt with procedural matters. In 1976, the council's charge was expanded to include forecasting electric power demand and facilitating energy planning. In 1977, the Power Facility Evaluation Council was given the added authority of regulating the siting of community antenna, television, and telecommunication towers. The council was also allowed to make annual assessments, in addition to the application fees, on the regulated industries as a mechanism for paying the council's expenses.
The next major legislative revisions affecting the council occurred in the 1980 and 1981 sessions of the General Assembly. In 1980, the legislature passed an act that partially addressed problems facing the state concerning hazardous waste facility siting. Public Act 80-472 required a permit be issued before a hazardous waste facility could be constructed or modified. The act set forth criteria and administrative procedures to apply for a permit.
Legislation was introduced in 1981 defined local and state siting involvement and gave the council final authority over the siting of hazardous waste facilities, including the power to override local decisions. The council's jurisdiction was limited to new facilities and modifications to new facilities that received a permit under this legislation. Existing facilities were exempted from council review.
The legislation also altered the council in two ways. It changed the council's name from the Power Facility Evaluation Council to the Connecticut Siting Council and added new members whose terms of office are coterminous with the process for siting a hazardous waste facility. Four members are added to the council during the permitting process, three from the town where the site is proposed and one from the town nearest to the site. Oversight of a completed facility is to be divided among the Department of Environmental Protection (DEP), the siting council, and municipal officials.
During the mid-80s, the council's jurisdiction was again affected by adding cellular telecommunications towers (as defined by the federal government), raising the threshold for council jurisdiction over cogeneration facilities (those that generate both electricity and steam) from 10 to 25 megawatts, and requiring council approval for the siting of a low level radioactive waste facility. The late-80s also brought additional procedural changes with respect to filing requirements and deadlines. Applicants were required to consult with municipalities prior to filing applications with the council. The council was directed to encourage tower sharing and was authorized to issue declaratory rulings.
The council's activities was further expanded in the 90s by requiring it to compare the costs of overhead and underground electric transmission lines over the life of the line (life-cycle costs) every five years. Additional provisions were passed to promote tower sharing. In 1994, exemptions were made for hazardous waste facilities if the council determined, after consultation with DEP, it would not pose a significant threat to public safety, human health, or the environment. Property condemnation proceedings were established for the council in 1995.
In the late 90s, most of the legislative changes involved the energy industry. The council was allowed to issue its own report assessing the overall status of electric supply and demand in the state. In 1998, following the passage of electric restructuring legislation, the council was authorized to approve, by declaratory ruling rather than certification, certain new generating plants. The plants had to use fuel other than coal or nuclear energy, and be proposed for an existing generating plant site, unless the council determined that the plant would cause substantial environmental harm. The amount of time the council had to issue a siting decision for all new generating plants was reduced from 12 to six months. In addition, the requirement the council determine public need for such plants was eliminated. Finally, the council was required to examine its procedures for siting new generating facilities in a restructured electric industry and determine how siting can be expedited while taking environmental concerns into account. The results were presented to the legislature last year and still under consideration.
Current CSC Roles and Responsibilities
The stated mission and charge of the Connecticut Siting Council is the "regulation of facility siting to balance the need for adequate and reliable public services at the lowest reasonable cost to consumers with the need to protect the environment and ecology of the state." To accomplish this, the council has several regulatory powers in limited areas covering the fields of energy, telecommunications, hazardous waste, and low level radioactive waste. Its primary function is site regulation including:
The council examines and acts on applications for approval of sites for construction, operation, and maintenance of these facilities. It is authorized to issue certificates of: 1) environmental compatibility and public need for energy and telecommunications facilities under its jurisdiction, and 2) public safety and necessity for the construction of new hazardous waste facilities. The council must review every modification of a project under its regulatory jurisdiction to determine if the modifications will have a substantial environmental effect, in which case a certificate would be required. (The certification process for each type of facility is outlined in the following sections.)
The council also considers petitions for declaratory ruling. At any time, any interested person may request that the council issue a declaratory ruling with respect to the applicability of any statute, regulation, final decision, or order enforced, administered, or promulgated by the council.
In addition, the siting council is responsible for:
Organizational Structure and Staff Resources
Organizationally, the Connecticut Siting Council is part of the Department of Public Utility Control for administrative purposes. The council's current structure, as illustrated in Figure I-2, consists of statutorily appointed members, an executive director, and staff.
Council membership, terms, and qualifications. Council membership varies between nine and 13 appointed members depending on the type of proceeding conducted. The core membership for all council activities includes five public members appointed by the governor, one member appointed by the house speaker, and one member appointed by the president pro tempore of the senate. Of the five public members, two must have a background in the field of ecology. No more than one public member may have any past or present affiliation with any utility or governmental entity regulating a utility.
In addition, energy and telecommunications projects are reviewed by the seven gubernatorial and legislative appointments as well as the commissioner of the Department of Environmental Protection and the chairperson of the Department of Public Utility Control.
Hazardous waste and low-level radioactive waste facility projects are reviewed by a 13 member council including:
For proceedings concerning ash residue, the membership is a nine-person council consisting of the seven gubernatorial and legislative appointments joined by the commissioners of the Department of Public Health and Public Safety.
All terms are coterminous with the appointing authority except those of the ad hoc members whose terms coincide with the process for siting the particular facility. The chairman of the council is appointed by the governor with the advice and consent of the house of representatives or senate.
Members are compensated for their attendance at public hearings, executive sessions, or other council business as may require their presence at the rate of $150 per day. Their annual compensation cannot exceed $12,000.
Staff resources. The day-to-day operation of the agency is the primary responsibility of an executive director appointed by the council. The council is served by a nine member staff, including the executive director, three analysts, a durational analyst, a fiscal administrative officer, and three administrative support personnel. The Office of Attorney General provides any legal services the council may need.
The council's major activities include reviewing petitions and applications for certification, visually inspecting sites and alternative locations, conducting public hearings on proposed projects, and issuing findings of fact, opinions, and decisions and orders at the conclusion of each proceeding. Development and management plans, required of all facilities granted certificates, are also reviewed and monitored by the council staff.
Budget resources. Pursuant to state law, all of the council's operating costs are financed by the facilities under its jurisdiction. The costs of conducting hearings and proceedings before the council are charged directly to the applicants. All other general administrative expenses of the council (i.e., those not billed for specific proceedings) are assessed against the various regulated industries. The agency is completely funded by application and filing fees (described further in the following chapter) as well as assessments collected from the energy, telecommunications, and hazardous waste industries.
According to state law, the council must review its anticipated expenses for the next fiscal year at a public meeting by December 31 each year. The council determines the amount to be paid by each industry based on the percentage of the council's work dedicated to each group. The council must notify interested parties of the meeting and give them an opportunity to speak. The agency must inform the legislature's Appropriation Committee of its determination and apportion the council's expenses among the service providers.
Payroll records are used to calculate the total number of hours, as a percentage, spent on petitions, dockets, exempt modifications, and tower sharing for each industry. The resulting percentage is applied to the budget for the next fiscal year. Table I-1 provides the apportionment of the CSC budget for the last four fiscal years.
|
Table I-1. Apportionment by Industry of CSC Budget: (FYS 97-01) |
||||
|
FY 97-98 |
FY 98-99 |
FY 99-00 |
FY 00-01 |
|
|
Total CSC Operating Expenses |
$ 775,787 |
$ 856,262 |
$ 1,011,541 |
$ 1,068,945 |
|
% Apportioned to Energy |
$ 147,399 (19%) |
$ 256,879 (30%) |
$ 596,809 (59%) |
$ 609,299 (57%) |
|
% Apportioned to Telecommunications |
$ 605,114 (78%) |
$ 590,821 (69%) |
$ 404,616 (40%) |
$ 448,957 (42%) |
|
% Apportioned to Hazardous Waste |
$ 23,274 ( 3%) |
$ 8,563 (1%) |
$ 10,115 (1%) |
$ 10,689 (1%) |
|
Source: Connecticut Siting Council |
||||
As shown in the table, the council's total operating expenses have gradually increased over time. In the most recent fiscal year, the council's total operating costs were just over $1 million, representing a 38 percent increase from FY98. The major part of the council's expenditures consisted of personal services and related employee fringe benefits for staffing. The table also indicates there has been a shift in the percentage of time dedicated to each industry. Four years ago, the majority of the council's work (78%) was related to telecommunications. However, the council has been increasingly spending a larger part of its time on energy. FY 00-01 reveals slightly more than half of the council's work has been spent in the energy industry. According to council staff, this is primarily due to the growing number of energy projects over recent years.
State law requires the calculation of assessments for each industry type and prohibits assessments from one industry paying for another. The assessment pays for the council's anticipated expenses for the next fiscal year minus those covered by application and filing fees. Companies are invoiced monthly for expenses related specifically to their projects including court reporting fees, council member per diems, travel, advertising, and any other expenses incurred in conducting hearings and proceedings. General administrative expenses and agency overhead is collected using percentage factors.
The method used to assess the energy industry is defined in C.G.S. § 16-50v(b)(1). The statute imposes an annual assessment on any utility with retail sales of more than $100,000 in the previous calendar year. The assessment percentage is proportional to the utility's gross revenues compared to that of the other utilities. The resulting percentage is then applied to the energy apportioned budget. Therefore, the company with the largest percentage of gross revenues pays the largest assessment. The statute caps the total amount of energy assessments at $1 million.
Assessments from the telecommunications and hazardous waste industries are billed and collected by statute by the Department of Revenue Services (DRS)1. State law requires DRS to make assessments for telecommunication service providers according to 1) how often providers appear before the council, 2) the degree of regulation the provider requires, and 3) the percentage of the council's workload the provider represents (C.G.S. § 16-50v(b)(2)) To do this, the agency has developed a formula which calculates and averages the totals for each criteria and produces a proportional percentage. The resulting percentage is then applied to the apportioned budget for telecommunications. There is no statutory cap on the assessed amount.
C.G.S. § 22a-132a specifies the method used to assess the hazardous waste industry. By law, the commissioner of revenue services must assess the council expenses among hazardous waste generators and treatment facilities in proportion to the amount of waste each produces as a share of the total. The commissioner must deposit these assessments with the state treasurer who credits them to a special fund that pays the council's expenses.
Collaboration with other agencies. Because of the broad spectrum of industries (i.e. energy, telecommunications, hazardous waste) under the council's jurisdiction, there are many federal and state agencies associated with the CSC sited facilities. For example, on the federal level, the Federal Communications Commission (FCC) licenses telecommunications providers while the Federal Energy Regulatory Commission (FERC) supervises interstate energy pipelines and supports the development of regional independent system operators (ISOs) to oversee the operation of electric power lines.
Although several federal laws govern the facilities under the council's jurisdiction, the federal government has little to no role in the actual siting of CSC facilities. Siting decisions are left to the state's discretion with some restrictions.
Additionally, there are state agencies involved with the sited facilities such as the Department of Public Utility Control which licenses electric suppliers, and the Department of Environmental Protection which issues operating permits. The council routinely seeks input from these agencies in making its decisions. In fact, commissioners from several state agencies including DPUC and DEP are council members. These agencies, however, play a larger role in the operations of sited facilities after a site has been approved and constructed.
Local municipal agencies also have limited authority in siting decisions. In addition, state law provides opportunities for local consideration and input. A summary of the various federal and state laws affecting the council's siting jurisdiction and a description of local involvement in the process is provided in subsequent chapters.
1 P.A. 00-174 requires the CSC rather than DRS commissioner to assess and collect telecommunications assessments. This provision becomes effective July 1, 2000 for the next fiscal year.