Legislative Program Review and Investigations Committee

Chapter IV

Hazardous Waste, Low Level Radioactive Waste, Ash Residue

In addition to energy and telecommunications, the Connecticut Siting Council has a regulatory role in the siting of hazardous waste, low level radioactive waste, and ash residue management facilities. Generally, the council has limited siting jurisdiction over facilities that treat, store, and dispose of these materials. The extent of the council's involvement in the siting of these facilities is described below.

Hazardous Waste Facilities

The federal Resource Conservation and Recovery Act (RCRA) establishes a "cradle-to-grave" management system that regulates hazardous waste from the time it is generated to its final disposal. The act also establishes a system for controlling solid non-hazardous waste including ash residue. RCRA leaves the siting of hazardous waste and ash residue facilities primarily to the states. States may seek approval from the federal Environmental Protection Agency to administer and enforce a state hazardous waste regulatory program in lieu of the federal program so long as the state program is equivalent to the federal program.

The Connecticut Siting Council has carried siting authority for hazardous waste facilities since 1981. Pursuant to state law, the council's certification jurisdiction was limited to facilities constructed after July 1, 1981. In addition, the statutes allow for exemptions to the council's certification proceedings for certain hazardous waste facilities. The exemptions are listed in Table IV-1.

Table IV-1. CSC Hazardous Waste Exemptions: C.G.S. § 22a-115

Exemptions to the CSC certification process are allowed for the following facilities:

· operating prior to June 1, 1983 or which had received all necessary permits before July 1, 1981;

· whose primary business is not disposal, treatment or recovery of hazardous waste but treats or recovers on site as part of an industrial process determined by DEP;

· approved by DEP, designed and operated for municipalities to dispose solid waste;

· used for short term storage; or

· CSC determines, after consultation with DEP, does not pose a threat to public safety, human health or the environment.

To date, the council has never sited a new hazardous waste facility. However, the council does review proposed modifications and issues declaratory rulings on exemptions.

Certification process. The certification process for hazardous waste facilities is similar to the energy and telecommunications proceedings in terms of notification requirements, public hearings, appeals and certain deadlines. Yet, there are some notable differences. For example, the council membership includes the commissioners of the Departments of Public Health (DPH) and Safety (DPS). A certificate of public safety and necessity, rather than a certificate of environmental compatibility and public need, must be obtained from the council prior to the construction of a hazardous waste facility.

In addition, some procedural differences exist with respect to application content and fee, municipal input, and siting decision criteria. The following discussion, illustrated in Figure IV-1, summarizes the significant differences in the hazardous waste siting process.

Application Filing. Similar to the energy and telecommunications proceedings, hazardous waste applicants must consult with the host municipality prior to submitting an application. Hazardous waste applications require additional information including detailed provisions for mitigating the effects of the facility's operations on public safety and the environment, plans for meeting the financial responsibility requirements, as well as the incentives offered and benefits accruing to the proposed municipality. A complete list of mandated filing requirements are listed in Appendix A.

Applicants must provide proof of service and notification to the fire marshal, director of health, police commissioner and water company for the municipality where the proposed facility is to be located, as well as the entities and individuals previously listed for energy and telecommunications facilities.

The application fee is based on the project's estimated construction costs, including land, but cannot be less than $5,000 or more than $100,000. Additional fees may be made for council expenses in excess of the application fee.

Applicants are required to apply for all local permits at the same time as filing an application with the council. Local authorities may regulate and restrict the proposed hazardous waste management facility but must make their decisions within 130 days of the application. Local decisions are subject to appeal to the council. An affirmative vote of eight council members is needed to override local decisions.

The siting process for a hazardous waste facility also includes provisions for the operator/owner to provide the host municipality with payments of a statutorily established assessment formula or to negotiate incentives. The total amount paid in incentives cannot be more than the amount that would be paid to a municipality as an assessment.

Negotiations for incentives are conducted with a local project review committee, consisting of four to nine electors from the affected municipalities appointed by their chief elected official. The applicant deposits a local project review grant of up to $50,000 with the siting council for use by the committee for technical and professional assistance. The council is the sole arbitrator of disputes arising from the negotiations. The council's decision on whether to approve or deny the siting of the facility includes the items negotiated between the parties.

The applicant provides public notice of the application in the newspapers with a general circulation in the area of the proposed facility. The notice will also instruct other municipalities on how to petition the council to become an "affected neighboring municipality". The council determines the neighboring municipality most likely affected by the facility by considering factors such as, but not limited to, proximity of the facility to the neighboring municipality, air quality and movement, surface and groundwater conditions, population density, and traffic data. Representatives from the most affected neighboring municipality serve as a voting council member and on the local project review committee.

Council Deliberations. During the consideration of a hazardous waste facility, council membership is expanded to include four ad hoc voting members, three of whom are electors from the proposed municipality and one is an elector of the neighboring municipality most likely affected by the proposed site, all are appointed by their chief elected official.

The statutory factors governing council decisions for a hazardous waste facility are more extensive than for other CSC facilities. Similar to other facility types, the council considers public need, environmental impact and conflicts with state policies, including adverse impact. Additionally, the council is required to make findings concerning a number of topics listed in Table IV-2. Before the granting a certificate, the council must also find that the applicant is in compliance with a variety of financial responsibility requirements.

Similar to energy transmission facilities, the council is required to issue its decision on a certificate within 12 months of receiving an application; the council can extend this deadline by another 180 days with the applicant's consent. As mentioned earlier, the council has yet to certify a new hazardous waste facility. However, it has received a small number of petitions for declaratory rulings regarding proposed modifications. Table IV-3 indicates the number of hazardous waste petitions for the last 10 years. Since 1990, the council has reviewed and approved 16 hazardous waste petitions.

Low Level Radioactive Waste

Pursuant to the Low Level Radioactive Waste Policy Act of 1980 (amended in 1985), the federal government requires each state to manage and dispose of its own low level radioactive waste (LLRW). Federal law encourages regional cooperation and permits states that form interstate LLRW compacts to restrict the use of their disposal facilities to member states.

In 1986, Connecticut, along with New Jersey, joined the Northeast Interstate Low Level Radioactive Waste Management Compact. Under this compact, both states were designated as "hosts" and each was directed to develop a low level radioactive waste disposal facility. This compact failed to produce any new low level radioactive waste facilities and there has not been an active site selection process in Connecticut since 1990. Recently, the Northeast Compact was renamed the Atlantic Interstate Low Level Radioactive Waste Management Compact with the admission of South Carolina. The Atlantic compact limits the use of the Barnwell, South Carolina site to member states and Connecticut and New Jersey are no longer designated as "hosts".

There is a statutory provision in Connecticut's LLRW siting law which prevents the council from issuing a certificate of public safety and necessity if any state or regional compact agrees to take all of Connecticut's low level radioactive waste. As a result of the Atlantic compact, the state Office of Policy and Management estimates that Connecticut will not need to site a low level radioactive waste disposal facility for approximately fifty years. The statutory provisions for siting low level radioactive waste facilities, summarized in Appendix B, are still contained in the Connecticut General Statutes for future use.

Ash Residue Disposal Facility

Another area under the council's jurisdiction is ash residue. Similar to the other facility types, authority for the siting of ash residue management facilities is left to state or local governments. However, unlike the other facilities, the Connecticut Siting Council does not provide a certificate for the construction or operation of an ash residue disposal facility. The council's role is to negotiate and arbitrate agreements between the municipality in which the proposed facility is to be located and the Connecticut Resources Recovery Authority (CRRA) which is the quasi-public agency statutorily created to develop and manage these facilities in the state. There has been no siting of new facilities since the law went into effect in 1989. The state has two pre-existing facilities - one in Hartford and Putnam.

If a new ash residue facility were proposed, CRRA must file an application with the council in order to initiate the negotiating process with the host municipality. Similar to hazardous waste and low level radioactive waste siting, a local negotiating committee must be established. The committee members are electors of the municipalities where the facility will be located in and those that are within 1000 feet of the facility. All members are appointed by their respective chief elected official.

In order to participate in the negotiation and arbitration process, a municipality must send the council a resolution adopted by its legislative body stating an intent to negotiate, and list its committee members. CRRA must deposit $50,000 with the council for costs incurred for legal and technical assistance used by the committee's review of the proposed facility.

CRRA is required to negotiate with the committee regarding 12 items specified in statute. The negotiation items are listed in Table IV-5. Either party may petition the council in writing to determine if a proposal may be negotiated.

For ash residue proceedings, the council statutorily consists of nine members. Five are gubernatorial appointees. One member is chosen by the Speaker of the House and another by the Senate President Pro Tempore. In addition, the commissioners of Public Health and Public Safety are mandated appointments. However, unlike the hazardous waste and LLRW process, there is no local representation on the council.

The council must conduct a public hearing on petitioned proposals and issue a decision within 14 days of the close of the hearing. Pending the council's decision, negotiation may continue on any proposal. Mediators can be used at any time during the negotiations.

State law requires negotiations conclude within 180 days. Agreements are binding if approved by both the applicant and the legislative body of the host municipality. If no agreement can be reached, the parties are required to request arbitration with final offers submitted to the siting council within 60 days of the arbitration request. The council will conduct a hearing so that both parties can present supporting arguments for their final offers. The council issues an arbitration award within 60 days. The council adopts the final offer of either party without modification.

Any negotiated agreement approved or arbitration award issued by the siting council must be by an affirmative vote of 75 percent of council members. After the siting council has approved a negotiated agreement or issued an arbitration decision and the applicant submits documentation of compliance with all host municipality zoning requirements, the Commissioner of Environmental Protection may issue final permits to construct the facility.

After five years of the facility's operation any of the items negotiated can be renegotiated if a party petitions the council and demonstrates substantial changes that warrant renegotiation. The council must render a decision on this petition within 180 days. All decisions may be appealed to the court.

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