Legislative Program Review and Investigations Committee

Chapter V

CSC Process and Outcomes

The focus of the program review study was to examine the policies, procedures, and overall operations of the Connecticut Siting Council. Committee staff used a variety of methods in its examination. One method was to review the council's process as laid out in statute and regulation and compare it to a random sample of case files of the council activities since 1995. This chapter includes the analysis of that review.

Adherence to Statutory Mandates and Timeframes

The majority of the council's work consists of certification applications and petitions for declaratory rulings, exempt modifications, and tower sharing. By law, individuals interested in constructing or significantly modifying a CSC regulated power or telecommunication facility must apply to the council for approval. Completed applications and petitions are assigned to council siting analysts who conduct technical reviews to ensure compliance with state and federal law and regulations.

Decision-making timeframes. A developer of a new or modified facility regulated by the council must obtain a certificate of environmental compatibility and public need from the council prior to beginning construction. In making certification decisions, the council has two primary statutory deadlines. The council is required to issue a decision within 12 months of receiving an application for an electric or fuel transmission facility. Applications for electric generating/substation facilities or telecommunications facilities must be decided within 180 days. The council can extend any of these deadlines by another 180 days with the applicant's consent.

Facilities seeking exemptions from the certification process must petition the council. Within 60 days after receipt of a petition request, the council must issue a written determination on the petition stating the reasons for its action.

Program review staff examined a random sample of certification dockets and petitions submitted to the council since 1995. Of the 30 dockets filed during that time period, committee staff reviewed 17 (57 percent) which covered all facility types. Committee staff also reviewed a random sample of 62 of the 134 petitions for declaratory ruling (46 percent) decided since 1995.

The staff analysis reveals the council adheres to its statutory deadlines for all facility types. All certification decisions in the random sample were made within the requisite 12 month or 180 day timeframe with extensions rarely needed. Action was taken on petitions within the 60 day deadline. In fact, more than 50 percent of the petitions were decided within a month.

Public hearing requirements. The council must hold a public hearing on a certification application between 30 and 150 days after receiving it. The hearing must be held by the council prior to making a final decision on certification. State law mandates at least one hearing be held after 6:30 p.m. for the convenience of the general public in the county where the proposed facility may be located.

The staff analysis of certification dockets found the council fulfills its public hearing requirements. All public hearings for certifications were held within the 30 and 150 day statutory window. Fifty-three percent of the proceedings had more than one public hearing. At least one hearing for each certification application was held in the proposed town and included a public portion held after 6:30 p.m.

The council, at its discretion, may schedule a hearing to determine any issues concerning a request for a petition for declaratory ruling. The committee analysis of petitions indicates the council rarely holds public hearings on petitions. Only four of the 62 petitions reviewed had a public hearing. All four were held in the proposed towns.

The committee finds council procedures on public notice could be improved. Connecticut General Statutes § 16-50l(b) requires public notice of applications to be published in newspapers as "will serve substantially to inform the public of such application and to afford interested persons sufficient time to prepare for and to be heard at the hearing... ."

The council, by statute, must advertise the date and location of a hearing in local newspapers at least a week in advance of the scheduled date. Based on committee analysis, the majority of public notices are published in two to three newspapers. On average, the public hearing notices in the random sample were published more than a month in advance. In some instances, notices were circulated two to three months in advance.

This complies with the statutory requirement and is consistent with the legislative intent to allow individuals time to prepare for a proceeding. However, the committee staff's profile of CSC proceedings indicate general public input is typically low. The program review committee finds the time lapse without a subsequent reminder closer to the scheduled date may contribute to low public participation at most council proceedings. (Council interaction with the public and other interested groups is further discussed in Chapter VI.)

To promote public participation, the program review committee recommends the council ensures its public hearing notices are also advertised at least once within the two week period prior to the actual hearing date.

CSC Decision Outcomes, Format, and Content

Each CSC siting decision includes three documents entitled: 1) Finding of Fact; 2) Opinion; and 3) Decision and Order. These documents are drafted by council staff, reviewed by the executive director, and approved by the council members. Based on the program review sample analysis, nearly all projects submitted to the council are granted certificates. Of the 17 random certifications reviewed, 14 were granted certificates and three were denied.

The majority of the 62 petitions examined by committee staff were seeking approval for facility modifications on the grounds the proposed changes would not produce substantial adverse environmental impact. The council found no substantial adverse impact and determined no certificate was needed in approximately 80 percent of the cases reviewed. In the remaining cases, the petitions were either converted into dockets for the certification process, withdrawn, or dismissed for miscellaneous reasons.

The council theorizes the high approval rate is due to it's stringent review process, which allows only well prepared applications to come before the agency. Given the time and costs involved, council staff believes the majority of project developers will not pursue or submit applications for projects that are inappropriate, unjustified, or unprepared.

Decision format and content. In addition to basic decision outcomes, the committee's random file sample of 17 certifications and 62 petitions were also examined for format and content. Among the items committee staff looked for were:

· CSC field visits;

· independent CSC staff analysis;

· consideration of alternatives;

· discussion and application of statutory criteria in decisions; and

· extent of municipal and public input.

The following are the results of the committee staff's review. Some review results relating to municipal and local input are also discussed in Chapter VI.

Field visits. As part of the CSC decision process, siting council members and staff may conduct one or more field visits at a proposed site to visually assess the location and surrounding land uses. Any identified problems and necessary contingency plans are reported to the full council. State law does not direct or require the council to conduct field visits in either certifications or petitions. Nonetheless, a minimum of one field visit was conducted with council members present in almost all the files reviewed. Seventy-five percent of the petitions had one site visit. Ten percent had more than one. Every certification file included one field visit by CSC staff accompanied by one or two council members.

Independent staff analysis. Another area program review staff examined was independent CSC staff analysis. This was an area of concern stated in testimony at the program review public hearing as well as in comments from the municipal survey. One reason independent analysis is important is that non-applicants (municipalities and private citizens) often do not have the resources or expertise to counter claims made by industry applicants.

In reviewing files, program review staff found the council does conduct varying degrees of independent analysis. For example, the council staff will review and analyze mathematical models that may be employed to predict stack emissions, downwash conditions, and projected air quality during operation of the proposed facility. For telecommunication projects, the council staff performs its own detailed computer analysis of propagation and radio frequency power density. CSC conducts site inspections and requires applicants to float balloons to proposed tower or stack height to assess visual impact on surrounding communities. The council frequently makes additional requests for information in the form of interrogatories to all parties. The council also consults and solicits input from various regulatory state and federal agencies such as the Department of Environmental Protection and Federal Aviation Administration.

Based on the committee staff file review, a perception the council relies heavily on the applicant information is understandable. Evidence of the council's independent analysis and requests for additional information is not always clear in the written opinions. CSC case files are voluminous and contain more detailed analysis and documentation than is incorporated into the final written decision.

Site selection and alternatives. The statutes and regulations both specify an applicant must provide justification for adoption of the site selected including a comparison with alternative sites. For a telecommunication tower, an applicant must specifically include a description of the siting criteria and the narrowing process by which other possible sites were considered and eliminated. Information about environmental effects, cost differential, coverage lost or gained, potential interference with other facilities, and signal loss due to geographical features compared to the proposed prime and alternative sites is required.

In reading CSC decisions, the committee found alternatives to the prime site were always mentioned. However, the amount of discussion and rationale comparing the prime and alternate sites varied. In almost half of the proceedings, non-applicant parties (usually municipalities) will propose alternative sites. The sample decisions show the council frequently supports an applicant's prime site.

It is important to note each project may need to meet certain technical requirements because of proximity to a water source or transmission connection, or topographical considerations. As such, the council must weigh these considerations against any environmental impact as well as how any project may be integrated with existing or future projects. For example, the construction of a tower at an alternative site may be feasible but not preferable because it may require a higher tower structure or the siting of additional towers in order to obtain the proposed coverage.

Although the council may have weighed all potential site and design considerations in its determinations, the program review committee finds the limited discussion of alternatives in the written decisions may promote the impression the council favors applicants. While it is reasonable for the council to clearly state why a chosen site is the preferred location, it does little to inform the other side about why the alternatives are not.

Discussion and application of statutory criteria. State law requires council members to consider a number of statutory criteria in making siting decisions. Statutory factors governing council decisions include the following:

1) a finding of public need for the facility and the basis of that need;

2) consideration of probable environmental impact and conflicts with state policies on the natural environment; ecological balance; public health and safety; scenic, historic, and recreational values; forests and parks; air and water purity; and fish and wildlife; and

3) a determination that any adverse impact or conflicts with state policies are not sufficient to deny certification.

In addition, the statutes also require the consideration of a few facility-specific factors. For electric generating projects, the statutes call for a public benefit determination rather than public need. Public benefit is statutorily deemed to exist if such a facility is necessary for the reliability of the electric power supply of the state or for the development of a competitive market for electricity.

For telecommunication towers, the council also must determine whether it is feasible to require the developer to share an existing tower or whether the proposed tower could be shared if built.

Three other factors must be considered for electric transmission line facilities: what part will be overhead; conformance with a long-term electrical system plan; and conformance with state and federal regulations and guidelines for overhead parts. Undue hazards to persons or property also must be considered for both electric and fuel transmission lines.

As stated earlier, each CSC decision includes three parts. The written Findings of Fact (FOF) lists the documented information on the project used in making the decision. Each FOF cites information collected from all the parties. In terms of format, each FOF typically includes a variety of subheadings for public need/benefit, proposed project, proposed site, environmental considerations, visibility, and municipal approvals. The Opinion presents the council's determination on the project and rationale. The Decision and Order outlines the council's final position and conditions.

There are three siting analysts who prepare decisions. All decisions are reviewed by the executive director prior to presenting them in draft form to the council. The committee found a high degree of consistency in the FOF format among the decisions issued.

Unlike the FOF, the written opinions do not have headings and set out the council's determination in no specific format. Every opinion reviewed by committee staff cited the statutory criteria somewhere in the narrative. The committee found the level of discussion of statutory factors varied. A direct link between the findings of facts and the statutory criteria was difficult to distinguish.

Current law requires the council to "state in full its reasons." There is no requirement the members explain specifically by issue how the statutory criteria are considered. As a result, the impact of the various factors in the context of the evidence presented and thus, the basis of the decisions, is not clearly identified in every decision. Therefore, the committee finds the current CSC decision format does not provide the kind of explanation that would be most informative about how the council members are making decisions.

The program review committee recommends council decisions 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 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.

When analyzing how the written decisions address the statutory criteria, it is important to note the statutory factors are not prioritized in any way in the statute. In addition, certain terms used in the criteria, like "public need" and "significant adverse impact," are not defined in the statutes or regulations.

A review of the decisions issued since 1995 indicates that although format and content of written decisions have varied slightly over time, the statutory criteria is always discussed and relevant information is always noted.

Given the statutory criteria and the council discretion in weighing the evidence, it is hard to conclude how council members are balancing interests as the legislature has asked them to do. The committee acknowledges it may be difficult to incorporate the rationale of each council member who may have different views on particular evidence and issues but yet arrive at the same decision.

Nonetheless, the committee finds the present statutory criteria are sufficiently broad to allow all parties to present relevant information addressing a wide range of concerns and interests. The statutory criteria are and should be intentionally broad to be interpreted and applied to each individual project. Changes in industry and the federal approach to regulation make it difficult to establish comprehensive definitions. The criteria should have the flexibility to absorb any impact technological changes an evolving industry may bring. Prioritizing or otherwise delineating the statutory language could hamper council deliberations. Decision format changes, as suggested in the above committee recommendations, should enable anyone to review an individual decision and determine why the decision was made.

Council views on the criteria. Council members were surveyed by program review committee staff on the council's process, procedures, and decision making process. Specifically, council members were asked if they felt they had the necessary statutory and regulatory guidance to make decisions. All respondents indicated they did. Council members do not believe the statutory criteria for siting decisions currently under their jurisdiction needs to be change.⁸ Most members noted experience provided the best guidance given the nature of case-by-case decision making and the criteria can only be interpreted in relation to a specific case.

A review of current council appointments reveals years of siting experience. Table V-1 presents the tenure of siting council members.

As the table shows, at least three of the council members including the chairman have been on the council more than 15 years. The statutory appointment of the DEP and DPUC commissioners to the council also bring continuity. Although the commissioner appointments could theorically change every four years, in fact, their current designees have served on the council in both full-time and part-time capacity over the last 20 years. In addition, the current executive director has been with the council since 1984.

Decision outcome analysis and tracking. While there is a need for council decisions to balance the statutory criteria and respond to case-specific considerations, council policies must also be consistent and uniformly applied. It is essential to periodically analyze what actions have been taken to ensure this. Tracking or trend analysis is not done on the council work.

Currently, the council does compile information on various aspects of its activities. The council records tower heights, structure type, and application and decision dates as well as numerous other variables. This information serves its purpose but in the present format has limited usefulness for monitoring and comparing outcomes.

Minutes from the council meetings and the written decisions themselves provide the only guidance on previous council decisions. Committee staff observation of CSC meetings revealed council members and staff rely primarily on their memories of prior cases when questions arise about previous actions taken in regard to specific issues. At the moment this seems to have worked fairly well given the tenure of council members and staff.

The program review committee finds reliance upon institutional memory problematic and contrary to good operating practice. Individual recollections of past actions are bound to vary. Moreover, the council membership will change in the future. In addition to adding discussion time to proceedings, the lack of a written compilation of council decisions increases the chances similar cases will be treated differently.

With broad criteria and statutory definitions, council interpretation of certain issues is the only guidance to standards and policy. In reviewing the council decisions committee staff found some recurrent themes and language. While it would be difficult to summarize the statements of the council members decisions, what follows are excerpts from decisions that are representative of the types of thoughts and statements expressed in council decisions.

On public need for telecommunications:

"The public need for cellular telephone facilities has been determined by the Federal Communications Commission (FCC) which has declared a general public need for wireless service, established a competitive market structure for system development, and developed technical standards that have restricted the design for facilities. These pre-emptive determinations by the FCC have resulted in a system of numerous cellular telecommunications facilities in nearly all areas of the country. Connecticut State law directs the Council to balance the need for development of proposed cellular telecommunications facilities with the need to protect the environment, including public health and safety."

[CSC Docket 182 (June 25, 1998); CSC Docket 188 (December 17, 1998); CSC Docket 195 (October 8, 1999)]

On public benefit for energy projects:

"Reliability of electric supply is of great importance in Connecticut, a service-oriented state that has become increasingly dependent on high technology. To improve the reliability of the electric supply system of the state, the proposed facility would operate on natural gas with a proven technology to augment and replace other existing generation facilities in the state. Some of these existing plants that would be replaced are over 40 years old and approaching retirement. These existing facilities to be replaced also include nuclear facilities that are not in operation or that have retired prematurely."

[CSC Docket 187 (January 8, 1999); CSC Docket 190 (April 27, 1999); CSC Docket 192 (June 23, 1999)]

On air quality for energy projects:

"The Council is aware that air quality in Connecticut is in need of improvement, which may be possible through the replacement of aging oil-burning generation plants with new, highly efficient gas-fired units. As the proposed and other new gas-fired plants displace older plants, nitrogen oxides and sulfur dioxide will decrease, improving both state and regional ambient air quality and the health of Connecticut residents."

[CSC Docket 187 (Jan 8, 1999); CSC Docket 190 (April 27, 1999); CSC Docket 192 (June 23, 1999); CSC Docket 193 (December 15, 1999)]

On siting telecommunications towers:

"The Council only approves the construction of a new tower if: no other alternative to share an existing tower or structure exists; the Council finds a technical need for a new tower at a particular site based on a detailed analysis of propagation, capacity, signal strength, and facility sharing; and the need for the facility outweighs the environmental effects of the facility after a detailed analysis of the effects on scenic resources, land use, ecological resources, and human health through worst-case modeling of radio frequency power density consistent with federal guidelines. This practice is supported by federal law and State policy."

[CSC Docket 188 (December 17, 1998); CSC Docket 182 (June 25, 1998)]

The program review committee believes it would be beneficial for the council to periodically review its own decisions to gauge its level of consistency and the direction of council policy. This is especially critical at times when changes in the industry or regulatory approach are occurring. In addition, reliance on institutional memory and experience becomes problematic when appointments change. To assist in reviewing CSC actions, the program review committee recommends a summary digest of council decisions be developed and maintained by October 1, 2001.

As stated earlier, the council has parts of a potential index or digest already available. Augmentation of existing council databases along with the newly formatted written decisions should produce a more comprehensive reference guide for the council. The digest recommended by the committee would be a reference document to aid council discussions and promote consistent actions on similar projects.

In addition to assisting existing members, the digest would also aid in familiarizing potential new members. Despite the low incidence of council member turnover, the council is guaranteed new appointments in the future. Considerations on proposed projects are often complex and difficult. Without the benefit of experience, initiation into council policy and proceedings would not be easy. Accordingly, the statutory mandates and council regulations as well as a copy and explanation of the newly created digest should be provided to all future members upon their appointment to the council.

Conclusions. The program review committee evaluation of council procedures indicates the Connecticut Siting Council adheres to its statutory mandates and timeframes. Improvements can be made in the publishing of hearing notices to promote public participation. CSC decisions all mention the statutorily mandated elements in varying degrees. Evidence of independent staff analysis is not always clear. The written opinions tend to focus on discussion and rationale on the viability of the chosen site with little discussion given to why the alternative sites or designs would not work.

Public confidence in a siting authority is fostered when its decisions are made on an objective basis, using accurate and reliable data, and procedures for selecting sites are formally established and followed. Therefore, council decisions should be written in a format that clearly states the criteria used, clear evidence of independent analysis, and more discussion of council positions on opposing party claims. The council should periodically analyze and track outcomes and orientation materials including a decision summary digest should be prepared for future CSC member appointments.

⁸ Almost all of the council members did mention that jurisdiction over telecommunications facilities should be consolidated. (See Chapter VII)

Return to Year 2000 Studies

Return to Table of Contents