April 17, 2008
Ash Landfill Siting Procedure
By: Paul Frisman, Principal Analyst
You asked about the procedure for siting ash landfills. This report primarily focuses on the procedure concerning Connecticut Resources Recovery Authority (CRRA) ash disposal areas, including issues of eminent domain and Connecticut Siting Council (council) membership. OLR Report 2008-R-0279 addresses related issues regarding the council and power plants.
State law allows CRRA to establish four sites to dispose of ash residue from municipal solid waste incinerators, and establishes a process for negotiation between CRRA and proposed host towns. It allows the disposal area to be built or modified without local zoning approval if the council has (1) approved the negotiated agreement between the host town and CRRA or (2) issued an arbitration award. The ash disposal site is exempt from local planning and zoning requirements, but must comply with all environmental and other applicable laws.
Although CRRA has eminent domain power, the law generally requires the authority, among other things, to explore alternatives to condemnation and to consult with proposed host towns before exercising this power (CGS § 22a-276). But the law (CGS § 22a-285a (f)) specifically allows CRRA to condemn real property for an ash disposal site without regard to these limitations. The condemnation action must be brought in Hartford Superior Court.
The law authorizes CRRA to establish two ash disposal sites east, and two sites west, of the Connecticut River. They must be selected from among 13 sites identified in a 1989 DEP report or found by DEP to meet the report’s siting criteria. The site cannot be located within four miles of an existing CRRA ash disposal site or in a town in which both a resource recovery facility and an ash residue disposal site are located. No more than one site can be established in a regional planning area (CGS § 22a-285a).
CRRA must notify DEP of the sites to be evaluated and begin surveys, inspections, or geological investigations to determine their suitability for ash residue disposal. The authority must see that no unnecessary damage results (CGS § 22a-285a (c)).
The agriculture commissioner must review each proposal. He must file a statement with the council if he finds the proposal would convert 25 or more acres of prime farm land to nonagricultural use. If he files such a statement, any negotiated agreement or arbitration award must be approved by three-quarters of the council members (CGS § 22a-285a (b)).
Solid Waste Permit
The law requires anyone building, modifying or operating a solid waste facility, including an ash disposal area, to obtain a DEP permit (CGS § 22a-208a). The law generally requires the DEP commissioner to issue a permit only if the applicant submits documents establishing that the proposed facility complies with local zoning requirements. But the law allows the commissioner to issue a permit for a CRRA ash disposal site without this local approval if the council has approved a negotiated agreement or issued an arbitration award, as described below (CGS § 22a-208b). CRRA must apply to the council to begin this negotiation and arbitration process within 10 days of applying to DEP for its solid waste permit (CGS § 22a-285e).
DEP must act on a permit application for an ash landfill within one year of the application’s filing. But if the council has not by then approved an agreement or issued an arbitration award, the DEP commissioner may extend the deadline until 30 days after the council issues an arbitration award (CGS § 22a- 285b(b)). Before a solid waste permit is issued, CRRA must provide a surety bond or other security satisfactory to ensure the site’s proper operation (CGS § 22a-285h).
Management and Transportation Plans
In addition to information normally required for a permit, CRRA must submit management and transportation plans for the commissioner’s approval. The management plan must preserve the site for public use to the greatest extent possible before, during, and after ash disposal. It must address (1) preserving parts of the site not immediately needed for ash disposal or site preparation, (2) public use at times and in a manner consistent with its use as an ash landfill, and (3) establishment of buffer areas, including buffers between ash disposal areas and homes and surface water. Site management also must not inhibit post-closure monitoring and maintenance The transportation plan must detail transportation of ash by rail, state highway, dedicated limited access roads, or local roads, with local roads being the least desirable option. (CGS § 22a-285c).
No later than 10 days after applying for a solid waste permit, CRRA must notify, by certified mail, (1) the chief elected official and planning and zoning commission chairmen of the proposed host municipality and (2) these same officials of any town within 1,000 feet of the proposed site’s perimeter (CGS § 22a-285b).
The chief elected official of each town notified of the DEP permit application may appoint members to a negotiating committee to serve at his pleasure. The proposed host municipality may appoint five members and two alternates. Any municipality within 1,000 feet of the proposed ash landfill boundary may appoint three members and one alternate, but the host municipality is allowed to appoint enough members to equal or exceed by one the total number of members of adjoining towns. Vacancies may be filled by the appointing authority (CGS § 22a-285e (a)).
On applying to the council, CRRA must deposit $50,000 with it for the negotiating committee’s use in obtaining legal and technical assistance to review the proposal. A committee may not receive more than its actual expenses (CGS § 22a-285e (b)).
Within 60 days of being notified, the chief elected official must send to the council a resolution adopted by the municipality’s legislative body stating its intention to negotiate and a list of committee members. A
municipality that does not negotiate may not impose any requirements on the ash site, and the site need not comply with local planning and zoning requirements (CGS § 22a-285f).
Negotiations must begin after each notified municipality has made appointments to the committee, or 60 days after notice has been received, whichever is earlier. Negotiations must be completed within 180 days after they start. The applicant and committee may negotiate on any item except matters that would be inconsistent with DEP requirements or make them less stringent (CGS § 22a-285g).
Negotiations must at least consider:
1. compensation to people for lost property value as shown by a study before and after site construction;
2. reimbursement for reasonable costs of negotiation, mediation, and arbitration exceeding $50,000;
3. screening and fencing, as long as disposal capacity is unaffected;
4. operational matters, such as noise, dust, debris, odors, and hours of operation, as long as disposal capacity is unaffected;
5. traffic flow and patterns;
6. site closure costs and post-closure site use;
7. payments for road repair resulting from traffic the site generates;
8. a greenbelt buffer for safety and aesthetics, taking into account proximity to residential areas;
9. purchase of fire-fighting equipment needed at the site;
10. payments for actual police and fire costs;
11. funding municipal site monitoring; and
12. a compensation plan for the host town.
The total value of negotiated compensation for all of these items to the host town must be at least the equivalent of $5 per ton of ash disposal. The negotiated agreement must include a process for resolving disputes (CGS § 22a-285g(b)).
No later than 10 days after a proposal is offered, either party may petition the council to determine if the proposal is negotiable. The council must hold a public hearing. DEP must comment on the proposal. Negotiations may continue until a decision is made. DEP must issue a decision within 14 days of the close of the hearing (CGS § 22a-285g (c)).
A mediator may assist in negotiations if the parties agree to it. The mediator must encourage, but cannot compel a settlement. The parties must evenly split the cost of mediation. If the parties cannot agree on a mediator, the council may appoint one (CGS § 22a-285g (d)).
Failure of either party to negotiate constitutes default unless the failure is for good cause or because further negotiations cannot reasonably be expected to result in a settlement. The council determines whether a default exists on the petition of either party following a hearing.
If the committee defaults, (1) CRRA can continue to seek permits and need not continue to negotiate or arbitrate, (2) the site need not comply with local planning or zoning requirements, and (3) the council may determine compensation and other terms for the municipality. If CRRA defaults no arbitration award may be issued (CGS § 22a-285g (e)).
Any agreement must be in writing and submitted to the council to determine if it complies with state law. Items that violate state law must be renegotiated and resubmitted in 30 days. The DEP commissioner must comment on the agreement. The agreement is binding if approved by CRRA and the host town’s legislative body (CGS § 22a-285g (f)).
If agreement on any issue is not reached in 180 days of the start of negotiations or an agreement is rejected by the CRRA or a legislative body of the proposed host town, the CRRA may submit the matter to the council for arbitration (CGS § 22a-285g (g)).
Within 60 days of an arbitration request, the parties must submit final offers to the council. Failure of either party to submit an offer is considered a default. A final offer may include issues offered in negotiation, but not items that the parties agreed to. Only items presented during negotiation may be submitted for arbitration unless both parties agree. The council must hold a hearing at which the parties can explain their final offers within 30 days after the deadline for submitting final offers. Negotiation may continue during arbitration, and the parties may enter into agreement before an award is issued (CGS § 22a-285g (h)).
The council, by majority vote, must issue an arbitration award within 60 days of accepting the final offers by adopting one of the two offers, unchanged. Within 15 days of the issuance of an award either party may appeal to Hartford Superior Court, which may affirm, deny or modify the award (CGS §§ 22a-285g (i) and (j)).
No sooner than five years after the ash site begins operating, any items the law requires to be negotiated may be renegotiated if the CRRA or an affected town petitions, and demonstrates to the council’s satisfaction that changed circumstances justify it. The council has 180 days after receipt of the petition or a time specified in the initial agreement to decide whether to allow renegotiation (CGS § 22a- 285g (l)).
siting council composition
For proceedings concerning CRRA ash landfills, the council members must include:
1. the public health and public safety commissioners or their designees;
2. designees of the House speaker and Senate president pro tempore; and
3. five members of the public, appointed by the governor.
At least two of the five public members must be experienced in the field of ecology, and no more than one must be or have been affiliated with a utility, government utility regulator, or anyone owning, operating, controlling or presently contracting with a power, hazardous waste, or ash disposal facility.
The appointing authority must appoint a substitute member if one of the members (other than a commissioner) lives in the proposed host town, and for any appointee with an illness or substantial financial or employment conflict of interest. Appointees must report any perceived substantial financial or employment conflict of interest to the appointing authority, who must determine if an actual conflict exits. If the applicant is a state agency, an appointee is deemed to have a substantial employment conflict only if employed directly by that agency. (CGS § 16-50j (d)). The council must establish application fees by regulation, but the law prohibits a fee of more than $25,000 to initiate proceedings (CGS § 22a-285g (k)).
The chief elected official of the host town, or his designee, has the right to enter and inspect the ash disposal site. DEP may delegate its right to conduct inspections to the official or designee (CGS § 22a-285i). The chief elected official may petition DEP concerning violations of the solid waste laws. DEP must investigate the allegations and provide a written report to the official within 14 days detailing the investigation and any action taken or proposed. Any petitioning town or a landowner within 1,000 feet of the site may sue in Hartford Superior Court requiring CRRA to comply with the solid waste laws concerning the use or operation of the site (CGS § 22a-285j).
The law does not restrict DEP’s power to impose conditions or requirements on the construction, operation, closure or post-closure care of an ash landfill. These conditions or requirements supersede any inconsistent or less stringent provision of a negotiated or arbitrated agreement (CGS § 22a-285g (m)).
Only ash from Connecticut solid waste may be disposed of at the site. CRRA must own any site in its capacity as a political subdivision of the state. Other private and public entities may operate the site under contract from CRRA as long as the authority retains ultimate control. Ownership of the area by CRRA is deemed public ownership (CGS § 22a-285k).