Attorney General: Honorable Arthur Rocque, Department of Environmental Protection, 1998-020 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

October 30, 1998

Honorable Arthur Rocque
Department of Environmental Protection
79 Elm Street
Hartford, CT 06106

Dear Commissioner Rocque:

Your office has inquired about the status of a pending application to extend a permit previously issued to Fedus Associates, LLC to construct an asphalt plant in Colchester, Connecticut. Your inquiry asks about the effect Public Act 98-216 has on the company's application.

By way of background, the Fedus Associates, LLC was issued a permit on January 16, 1997 to construct and operate an asphalt plant with an expiration date one year from the date of issuance. The permit specifically provided that "emission testing must be completed and the results found acceptable by this Department within twelve (12) months after issuance of this permit. The Final Permit to Operate will not be issued until acceptable emission results documenting MASC compliance have been received and reviewed by this Department." (Permit at p. 10). This language makes clear that the permit to operate was a conditional permit in accordance with  22a-174-3(g)(3) RCSA which provides:

In circumstances where performance tests must be conducted during actual operations, the Commissioner may issue a conditional permit to commence operations for up to one year which shall be non-renewable. In those instances where a reliable performance test demonstrates that the stationary source does not meet all applicable emission limitations, the Commissioner may issue an order to the owner or operator to allow continued performance testing of the stationary source.

By letter dated September 10, 1997, Fedus noted that "Fedus Associates is presently in the construction and erection process for this asphalt plant. It is not expected that the asphalt plant will be operational or that stack testing will be completed prior to the permit [to construct and operate] expiration date" and requested "that the permit expiration date be extended until the construction of the asphalt plant is completed and stack testing requirements are satisfied." Because the conditional permit to operate was non-renewable, the Commissioner had no authority to act on the request to extend it; and it expired by operation of law on January 16, 1998. The request to renew the permit to construct is therefore the only request pending before the agency at this time.

In June, 1998, P.A. 98-216 was enacted. It provides in relevant part:

Sec. 4. (NEW) No asphalt batching or continuous mix facility shall be located in an area which is less than one-third of a mile in linear distance from any hospital, nursing home, school, area of critical environmental concern, watercourse, or area occupied by residential housing. Such distance shall be measured from the outermost perimeter of such facility to the outermost point of such zones provided that any such facility in operation as of December 31, 1997, shall not be subject to the provisions of this section.

Sec. 5. This act shall take effect from its passage, except that section 1 shall take effect October 1, 1998.

The language of the public act is quite plain. Any asphalt batching or continuous mix facility not in operation as of December 31, 1997, may not be located less than one-third of a mile from any of the sites listed. According to the information you have supplied to me, the Fedus Colchester plant is located within one-third mile of a watercourse and within one-third mile of residential housing and, as of December 31, 1997, it was not in operation. If those are the facts regarding the location of the plant and its operation, the currently pending application to renew the permit to construct the plant must be denied as the statutory language prohibits location of such a facility, inter alia, within 1/3 mile of residential housing and within 1/3 mile of a watercourse.

Pursuant to  22a-174-3(i)(2) RCSA, the DEP must give notice of the reason for your tentative denial of the request to renew the permit to construct and make the actual denial effective thirty days from the date of service of the notice. You should include the fact that the conditional permit to operate expired by operation of law and could not be renewed in your notice. Section  22a-174-3(i)(2) RCSA provides:

Notice of denial, revocation or change in the conditions of either a permit to construct or a permit to operate shall set forth the reasons for the action taken and shall be effective thirty (30) days after the date of service of the notice, unless a hearing is requested prior to the expiration of the thirty (30) day period.

In addition, the DEP must follow the public notice requirements of Conn. Gen. Stat.  22a-6h which provides:

 22a-6h. Notice of tentative determination re permit application

(a) The Commissioner of Environmental Protection, at least thirty days before approving or denying an application under section ... 22a-174, .... shall publish or cause to be published, at the applicant's expense, once in a newspaper having a substantial circulation in the affected area notice of his tentative determination regarding such application. Such notice shall include: (1) The name and mailing address of the applicant and the address of the location of the proposed activity; (2) the application number; (3) the tentative decision regarding the application; (4) the type of permit or other authorization sought, including a reference to the applicable statute or regulation; (5) a description of the location of the proposed activity and any natural resources affected thereby; (6) the name, address and telephone number of any agent of the applicant from whom interested persons may obtain copies of the application; (7) a brief description of all opportunities for public participation provided by statute or regulation, including the length of time available for submission of public comments to the commissioner on the application; and (8) such additional information as the commissioner deems necessary to comply with any provision of this title or regulations adopted hereunder, or with the federal Clean Air Act, federal Clean Water Act or federal Resource Conservation and Recovery Act. ...

(b) For the purposes of this section, "application" means a request for a license or renewal thereof or for any permit or modification of a license or permit or renewal thereof if the modification is sought by the licensee.

I hope that the above advice is helpful.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Judith A. Merrill
Assistant Attorney General

RB/JAM


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