Environment

By:

Joseph Holstead, Associate Analyst

Paul Frisman, Principal Analyst

2008-R-0402

July 14, 2008

TO THE READER

This report provides highlights of new laws (Public and Special Acts) affecting the environment enacted during the 2008 legislative session. At the end of each summary we indicate the Public Act (PA) or Special Act (SA) number and the date the legislation takes effect.

Not all provisions of the acts are included here. Complete summaries of all 2008 Public Acts will be available in the fall when OLR's Public Act Summary book is published; some are already on OLR's webpage: Office of Legislative Research.

Readers are encouraged to obtain the full text of acts that interest them from the Connecticut State Library, the House Clerk's Office, or the General Assembly's website: Welcome to the Connecticut General Assembly

This act creates a nine-member Connecticut Milk Promotion Board in the Department of Agriculture (DOAG) and requires the DOAG commissioner to work with the United States Department of Agriculture or other appropriate agencies to certify the board by October 1, 2008.

It also requires the DOAG and Economic and Community Development (DECD) commissioners, within available resources, to make recommendations and propose legislative changes to lower dairy farm production costs and increase dairy industry revenues. The recommendations and proposals on reducing costs must be made in consultation with the Office of Policy and Management. The proposals and recommendations are due by January 1, 2009.

The act allows food service establishments to purchase Connecticut-grown farm products, instead of just fresh produce, that have been produced and are sold according to applicable state regulations at a farmers' market. “Farm products,” as defined by law, include fresh fruits and vegetables; nuts; shell eggs; honey; maple syrup; nursery stock and other horticultural products; livestock food products such as meat, milk, cheese, and other dairy products; sugar; flowers; aquaculture products; products from trees, vines, or plants; and products processed by the farmer, such as baked goods made with farm products.

This act establishes new programs and policies for preserving different types of land. It establishes a separate, non-lapsing General Fund account for acquiring, restoring, and maintaining farmland, open space, urban parks, and historic resources. The account must contain any money the law appropriates to it plus any public and private contributions. To oversee how the funds in this account are used, the act creates a 15-member committee within the Department of Environmental Protection (DEP) for administrative purposes only.

The act allows the agriculture commissioner to acquire development rights to more types of farmland. Existing law limits his authority to do so under the Farmland Preservation Program to farmland meeting specified criteria. The act allows him to establish a separate program to acquire up to 100% of the rights to farmland that does not meet these criteria. He may purchase these rights jointly with a municipality.

But it also caps the amount the agriculture commissioner can spend to buy development rights under the existing program at $20,000 per acre. He must also adjust the regulatory payment schedule to reflect this change and consult with the Farmland Preservation Board when developing the program's regulations.

(PA 08-174, effective upon passage, except for the per acre cap on development rights purchases, which take effect October 1, 2008)

By law, a “farm winery” is any place or premises located on a farm in the state where wine is manufactured and sold. A farm winery permit allows its holder to make and sell wine and brandies distilled from grapes or other fruit products. Prior law required at least 25% of the fruit crop used in the manufacture of a permittee's wine to be produced on the farm winery premises or on property adjacent to it in the state that is under the permittee's ownership and control. The act instead requires that at least 25% of the fruit crop used in the manufacture of the permittee's wine be grown on (1) the farm winery, (2) land the permittee owns and controls, or (3) on land leased by the permittee or permittee's backer. It further requires the fruit to be grown in the farm winery's “principal state.” The act does not define “principal state.”

The act also requires that when a crop is grown on separate properties, the aggregate acreage of the properties must be at least five acres for the farm winery to be eligible for a permit. It specifies that the wine manufacturer permit allows the permittee to sell, ship, and offer wine and brandy produced at the farm only at the main location (“principal premises”) of the farm winery.

This act stipulates that proceeds from state sales of timber, wood, and other products from publicly owned woodlands that are deposited into the Conservation Fund must be used solely to support forestry programs. Under prior law, such funds went into the fund and paid for various DEP programs (and General Fund appropriations paid for forestry programs). More specifically, prior law required the annual deposit of proceeds from state sales of timber, wood, and other products from publicly owned woodlands in excess of $875,000 into the Conservation Fund, which pays for various DEP programs. The act instead requires that proceeds in excess of $600,000 from such sales be deposited into the fund and restricts their use to the support of forestry programs, while permitting use of General Fund appropriations for these programs.

The act also requires the DEP commissioner to have Connecticut's forests, woodlands, and products from them certified or licensed under relevant programs by January 10, 2010. Prior law allowed the commissioner to do so without a deadline. The act also broadens the list of programs acceptable for certification and licensing to include any deemed necessary by the commissioner.

In addition, the act authorizes the DEP commissioner, within available resources and in consultation with the Connecticut Agriculture Experiment Station, UConn, and any other entity deemed appropriate, to study sustainable harvesting of forests in the state.

This act makes several changes to the state's livestock dealers licensing program.

It expands the program to require licenses for all livestock dealers and their agents, not just these who deal in cattle and swine. The act eliminates the license exemption for trucking companies that primarily truck animals either interstate or intrastate, although railroads remain exempt. It adds an exemption for youth projects or organizations keeping, feeding, breeding, growing, showing, or raising livestock.

The act defines “livestock” as any hooved (e.g., sheep, swine, and horses) or camelid animal (e.g., llamas), and a “livestock producer” as any person involved in feeding, keeping, growing, raising, or breeding livestock for domestic or commercial use.

The act broadens the types of diagnostic tests for infectious diseases that DOAG may perform and the types of animals subject to these tests. DOAG performs these diagnostic tests at no expense to the dealers.

The act allows, rather than requires, the commissioner to adopt relevant regulations.

Under the act, violations may result in license revocation, discretionary fines of $200 for a first offense and $500 for any subsequent offenses, or administrative civil penalties in lieu of fines. Under prior law, the fines were mandatory.

1. increases the value of a Women, Infants, and Children (WIC) program farmers' market voucher from $2 to $3 (by law, eligible participants in the program receive five vouchers during each distribution);

2. lowers from seven to three the required number of years of experience in a large animal practice the state veterinarian must have;

3. expands the entities eligible for the agricultural viability matching grant to include groups of municipalities, regional planning agencies, councils of governments, councils of elected officials, and other groups of municipalities with a regional inter-local agreement;

4. makes changes to the “Connecticut Grown” law (by expanding the applicable definition of farm products to include all those resulting from the practice of farming or agriculture, and “Connecticut Grown” to include all farm products that have a traceable origin in Connecticut); and

5. deletes the requirement that the DOAG commissioner adopt regulations concerning commercial and customer formula feeds.

This act replaces state boating safety rules and regulations with federal standards, as amended periodically, in several boating categories.

1. makes minor changes to laws governing the DEP-approved boating safety courses that are required to obtain vessel and personal watercraft operator licenses;

2. prohibits owners from allowing unlicensed youth under age 16 to operate vessels and personal watercraft in most instances;

3. prohibits (a) boating safety courses not approved by the commissioner and (b) DEP employees from profiting from DEP safe boating or personal watercraft operation materials, with violations subject to fines between $60 and $250;

5. makes several conforming and technical changes to the environmental statutes.

This act extends the sunset dates for two Connecticut Development Authority (CDA) programs that provide financing for large-scale development projects. Concerning the environment, one of these programs uses incremental property tax revenues that a completed project generates to repay the bonds issued to finance it (i.e., property tax TIF). These revenues can be used to repay bonds issued to clean up and redevelop contaminated property or for certain information technology projects. The act extends the programs by extending the sunset date to July 1, 2010 instead of July 1, 2008.

This act revamps the multipurpose brownfield clean-up and redevelopment program into separate grant and loan programs, each with its own eligibility criteria and administrative requirements. But it also retains most of the old program's criteria and application procedures. DECD remains the administering agency. The act allows the DECD commissioner to use up to 5% of grant and loan amounts to cover reasonable administrative expenses.

The act expands the circumstances under which a municipality can enter and investigate or assess contaminated property and specifies the extent to which it is immune from liability when it does so. It requires the municipality to notify the owner before entering the property and sets narrow grounds under which the owner can appeal the municipality's intention to do so.

The act reestablishes the Brownfields Task Force and requires it to recommend additional brownfield remediation options to the legislature by January 1, 2009.

This act mandates reductions in state greenhouse gas (GHG) emissions and makes changes designed to help the state achieve the reductions. Prior law set state GHG emission reduction goals for 2010, 2020, and 2050. The act requires the state to meet its 2020 goal and a modified 2050 goal.

It requires certain state agencies to identify (1) activities and facility improvements to meet state energy saving goals and (2) policies and regulations they may adopt to help meet the emission limits. It also requires the DEP commissioner, with the help of a regional nonprofit air quality and climate organization, to publish a baseline inventory of GHG emissions and recommend strategies, regulatory actions, and policies to achieve the necessary reductions. It eliminates a requirement that the commissioner establish a regional GHG registry to which certain emission sources must report, and related provisions.

The act requires the Governor's Steering Committee on Climate Change (steering committee) to create a subcommittee to assess the impact of climate change on the state and recommend to the governor and legislature ways the state can adapt to, and mitigate, harmful impacts. It authorizes the DEP commissioner to contract with, and serve on the board of, a nonprofit organization created to help the state implement a multistate air pollution control program.

It allows the commissioner to use funds from the greenhouse gas reduction fee on new motor vehicles to implement air pollution control requirements, as well as the act's greenhouse gas reduction requirements.

It also (1) requires the Department of Transportation to continue to investigate, within available appropriations, the potential for improving the state transportation system in ways to reduce GHG emissions; (2) requires DEP to keep abreast of low carbon fuel standards in other states and elsewhere; (3) allows proceeds from the auction of GHG emission allowances to be used to cover certain state agency administrative costs; (4) authorizes DEP to work with other states and Canadian provinces to develop market-based compliance mechanisms to achieve the GHG limits, including a cap-and-trade program; (5) changes reporting requirements, and (6) makes other changes.

(PA 08-98, effective October 1, 2008, except for the provision concerning the DEP commissioner's contracting authority, which is effective on passage)

This act adds DEP sworn law enforcement officers to the people whose home addresses are not publicly disclosable by state and local government agencies under the Freedom of Information Act.

This act requires a nuclear power plant operator to post on its website all plans for routine and continuous releases of radiation, including their dates and times and the types of radioactive material to be released. An operator must post the information as soon as the release is scheduled.

This act modifies what counts as “sustainable biomass” for purposes of the state's renewable portfolio standard (RPS), which requires electric companies and competitive electric suppliers to get part of their power from renewable resources. Under the RPS, electric companies and competitive electric suppliers must get part of their power from renewable resources, with specific mandates for obtaining power from class I and II resources. By law, sustainable biomass used in facilities that meet specified emission or size limits is considered a type of class I resource. Sustainable biomass used in facilities that meet less stringent emission limits is considered a class II resource. The power from class I and II resources qualifies for renewable energy certificates that are bought and sold on the regional wholesale electric market.

By law, four types of biomass generally do not count as sustainable biomass. These are: (1) construction and demolition (C&D) waste; (2) finished biomass products from sawmills, paper mills, or stud mills; (3) organic refuse fuel derived separately from municipal solid waste; and (4) biomass from old growth timber stands.

Prior law provided three exceptions to this exclusion. By law, the third exception runs until Department of Public Utility Control (DPUC) certifies that the gasification plant described in the first exception has become operational and is accepting the biomass. The act modifies the third exception by (1) limiting the amount of the four types of biomass that can be used at the facility to 140,000 tons per year; (2) requiring DPUC to have certified the facility as a class I renewable energy resource before December 31, 2007; and (3) requiring that the facility use biomass, including C&D waste, from a Connecticut transfer station and volume-reduction facility that generated biomass during calendar year 2007 that was used during that year to generate class I renewable energy certificates.

The act adds a new exception under which the four types of biomass can count as sustainable biomass. Under the act, if no facility described in the first or third exceptions is accepting such biomass, up to 140,000 tons of the biomass can be used each year in one or more other renewable energy facilities certified as a class I or II renewable energy resource by DPUC. These facilities must use the biomass (including C&D waste) from a Connecticut transfer station and volume-reduction facility that generated biomass during calendar year 2007 that was used during that year to generate class I renewable energy certificates.

The act's 140,000-ton annual limit does not apply to gasification plants funded by the Clean Energy Fund before May 1, 2006.

The act permits the Department of Public Health (DPH) commissioner to make agreements with other states' agencies concerning training for asbestos and lead abatement practitioners and consultants that run from the act's passage to June 30, 2009. The agreements must establish criteria that allows training approved by out-of-state agencies to satisfy the training DPH requires for practitioners' and consultants' licensure and certification.

This act allows the use of refrigerants in motor vehicle air conditioning that may be toxic or flammable as long as they are designated as safe alternatives under federal environmental regulations.

This act establishes limits for lead in children's products by amending the State Child Protection Act, the state's counterpart to the Federal Hazardous Substances Act. With certain exceptions, it makes children's products that fail to comply with the limits banned hazardous substances. It also prohibits the sale of toys or other articles marketed for children under age 16 that contain asbestos.

The act requires retailers and other businesses selling a banned hazardous substance to complete a certificate of disposition to account for its disposal. It requires the Department of Consumer Protection (DCP) commissioner, who administers the State Child Protection Act, to post on the department's website a list of toys and other articles intended for use by children that are banned hazardous substances. The commissioner must also consult with DEP and DPH to compile a list of other toxic substances and safer alternatives. The commissioner may adopt regulations requiring certain consumer products to have warning labels if they bear lead-containing paint.

2. requires stores to post notices when DCP designates an article as a banned hazardous substance, making failure to do so an unfair trade practice; and

3. makes it an unfair trade practice to fail to allow a DCP inspector or investigator to (a) inspect an establishment where hazardous substances are manufactured or (b) obtain a sample.

The act authorizes the DEP commissioner to take part in an interstate clearinghouse to classify chemicals according to the risks they pose. The legislature further refined provisions of this act described above, PA -08-106, with additional changes under PA 08-122.

PA 08-122 modifies the above by requiring DCP to implement the following provisions within available appropriations:

1. adopt regulations (a) phasing in limits for lead in electronic children's products and (b) requiring warning labels on certain consumer products;

2. compile a list of toys and other articles intended for use by children that are banned hazardous substances and post it on the agency's website;

3. compile a list of other toxic substances in consultation with the DPH and DEP commissioners;

4. compile, and from time to time amend, a list of safer alternatives to the above substances; and

5. develop a certificate of disposition for retailers and wholesalers to account for any children's product that is subject to a recall or voluntary corrective action.

Under prior law, whenever a DCP inspector found, or had probable cause to believe, that a hazardous substance was misbranded or banned, he or she was required to put an embargo tag on it. The tag gives notice that the substance is detained or embargoed. The act instead requires inspectors to tag items only within available appropriations.

PA 08-106 prohibits placing in the stream of commerce a children's product that is (1) subject to voluntary or mandatory corrective action taken under the direction of or in cooperation with the federal government and (2) has an uncorrected defect in the product has not been corrected. This act exempts articles described in the federal Food, Drug and Cosmetic Act (21 USC § 321(g)).

The law requires the DCP commissioner, in consultation with the DPH and DEP commissioners, to compile a list of toxic substances and the recommended maximum amount that may be present in children's products. This act, in addition to requiring that the list be compiled within available appropriations, instead requires the list to be of toxic substances that potentially should not exist in children's products.

(PA 08-106, effective October 1, 2008, except for the provisions concerning the certificate of disposition and the interstate clearinghouse, which are effective upon passage, and PA 08-122, effective October 1, 2008)

This act specifies that, for the purposes of enforcement of certain hazardous waste laws, the terms “treatment,” “storage,” “disposal,” “facility,” “hazardous waste,” and “used oil” have the same meaning as under the state hazardous waste program and regulations authorized under CGS § 22a-449(c). The Connecticut Supreme Court declared prior law to be unclear on whether state or federal definitions applied for enforcement purposes (State v. Cote, 286 Conn. 603 (2008)). The state hazardous waste program's regulations incorporate federal hazardous waste law (40 CFR 260) by reference unless otherwise specified.

This act establishes new programs and policies for preserving different types of land (see page three above Face of Connecticut Steering Committee and the preservation of Farmland) and cleaning up and redeveloping contaminated land. The act exempts a nonprofit organization from paying property taxes on open space land it holds and preserves for that purpose. A recent Superior Court decision found that a land trust must use the open space land for a charitable purpose to qualify for the statutory tax exemption. The act specifies that it does not affect any stipulated judgment on the imposition of property taxes.

(PA 08-174, effective upon passage, except for the open space property tax exemption, which takes effect on or after the October 1, 2007 assessment year)

The act allows applicants for the open space and watershed grant program to use other state funds as matching grants. It specifies that they may use other state and federal funds to fund up to 70% of their projects. Prior law required these recipients to match the grant with their own funds.

Among other things, the act requires applicants for auto recycling business licenses to certify that they are in compliance with environmental laws as a prerequisite for licensure, and establishes requirements for notifying DEP and refusing licensure or granting conditional licensure if there is reason to believe a facility is not compliant.

By law, television and computer manufacturers must participate in a program to implement and finance the collection, transportation, and collection of their discarded products, known as covered electronic devices (CEDs). This act changes the way television manufacturers are billed for their share of recycled televisions from “return share” to “market share.” It also delays, by six months (from October 1, 2008 to April 1, 2009), implementation of the state's recycling program. (For

example, this delays the date for manufacturers to take part in the recycling program and on which each town must provide recycling.)

(PA 08-35, effective October 1, 2008, except for provisions delaying by six months requirements that (1) DEP adopt regulations setting registration and other fees and (2) CED manufacturers pay annual registration renewal fees determined by regulation, which take effect July 1, 2008)

This act bars the DEP commissioner from permitting a solid waste facility to be built or operated on land whose boundary is within 150 feet of property where there is a housing development owned by a housing authority, unless the commissioner determines the facility does not pose a threat to (1) the environment of the surrounding geographic area or (2) public safety. The act does not define “surrounding geographic area.” It exempts from this prohibition (1) permits to build or operate a solid waste facility issued on or before September 30, 2008 and (2) the renewal of these permits. Under the act, a solid waste facility is a solid waste disposal area, volume

reduction plant, transfer station, wood-burning facility, biomedical waste treatment facility, or redemption center.

This act allows the DEP commissioner to approve a solid waste demonstration project upon finding it (1) is necessary to research, develop, or promote methods and technologies of solid waste management consistent with the goals of the state's solid waste management plan; (2) does not pose a significant human health or environmental risk; and (3) is consistent with the federal Water Pollution Control, Rivers, and Harbors; Clean Air; and Resource Conservation and Recovery acts.

People seeking an approval must (1) apply on a form the commissioner prescribes, (2) provide the information the commissioner deems necessary, and (3) pay a $1,000 application fee. They cannot start the project without the commissioner's written approval.

The commissioner may impose conditions on the approval to protect human health and the environment or to ensure a project's success.

The act requires DPH, in consultation with DEP and DCP, to convene a working group to study and make legislative recommendations to ensure that property owners of new construction served by a private water supply well have an adequate water supply meeting current regulatory portability standards. The group must also study and make recommendations on the installation of replacement water supply wells on properties with insufficient area to meet current separation distances as specified in regulations.

The working group includes: (1) the commissioners of DPH, DEP, and DCP, or their designees and (2) various interested stakeholders who have indicated to DPH their willingness to work on these issues. The group must report to the Public Health, Environment, and General Law committees by July 1, 2009.

This act declares it state policy that the portion of the Lower Farmington River and Salmon Brook, which is the subject of a study by the Lower Farmington River and Salmon Brook Wild and Scenic River Study Committee, be preserved according to the federal Wild and Scenic Rivers Act.

The act requires the DEP commissioner to cooperate with all federal, state, and local agencies to provide for designation under the federal act and to implement a management plan as it requires. Once Congress designates the area, the commissioner must notify the Environment Committee of any statutory changes needed to preserve it according to the act. She must send a copy of the act to the state's Congressional delegation.

The Lower Farmington River and Salmon Brook Wild and Scenic River Study Committee's membership includes representatives from (1) Avon, Bloomfield, Burlington, Canton, East Granby, Farmington, Granby, Hartland, Simsbury, and Windsor and (2) the Stanley Works, National Park Service, Farmington River Watershed Association, and Salmon Brook Watershed Association. The National Park Service provides staff support and overall coordination, according to the committee's web site: http://www.lowerfarmingtonriver.org/?page_id=2.

This act restores a requirement that zoning commissions and planning commissions, respectively, “give due consideration” to inland wetlands agency reports when reviewing, for a regulated wetlands area, (1) a site plan to help determine the conformity of a proposed building, use, or structure with specific zoning regulations and (2) applications and plans for subdivisions and re-subdivisions. PA 07-102 required that these commissions instead “consider” these reports.

The act requires DEP, within available resources, to award a grant to the Norwalk Public Works Department to study portions of the Norwalk River watershed and develop a watershed and flood management plan for it.

Prior law required any person applying to DPH for authorization to repair or construct a subsurface sewage disposal system involving a waiver of the proximity requirement for a private residential well to notify in writing all abutting property owners. By law, a DPH decision on the application constitutes a final decision for purposes of appeal to Superior Court. The law also states that DPH's approval does not constitute an affirmative defense to liability claims related to a disposal system's proximity to a well.

The act: (1) replaces the term “private residential well” with “water supply well,” thus broadening applicability to also include non-residential wells and public water supply wells; (2) requires written notification to all property owners with water supply wells affected by the exception request, not just abutting property owners; and (3) eliminates the language on a final decision for appeal to court.

This act allows the town of Durham to withdraw up to 100,000 gallons of water per day for three consecutive days per year without the water diversion permit the law requires.

1. modifies DPH's review and approval process concerning proposals for new water supplies;

2. expands the potential disciplinary actions DPH can take against department-licensed or -certified people or entities who engage in actions harmful to property owners;

3. (a) requires installers of irrigation systems or other connections between public water supply distribution systems and other water systems to notify the water company of the installation, (b) authorizes local health directors to order mitigation measures if such connections create an unreasonable risk of injury to health and safety, and (c) requires DPH to adopt regulations on irrigation systems and other connections; and

4. establishes a penalty for prohibited aircraft-related activities on reservoirs and amends the penalties for other violations concerning improper activities on public water supplies.

It is illegal to hunt moose or bear in Connecticut. This act increases the penalties for illegal hunting of these animals and requires the DEP commissioner to suspend or revoke a violator's hunting license. It allows the commissioner to designate an open season on these animals according to law.

The act requires sport fishing licenses to state that anyone will be fined for littering for intentionally discarding fishing line or other litter (1) on private property belonging to another person, (2) in state waters, or (3) on state public property. The statement must be conspicuous and either accompany, or be printed on, the license. The penalty for littering is a fine of up to $199. A person who litters in a state park or forest, or any other publicly owned land open to the public for recreation, must also pay a surcharge of half the fine.

(PA 08-144, effective upon passage, except for the provision on fishing lines and other litter, which takes effect October 1, 2008)