Attorney General's Opinion

Attorney General, Richard Blumenthal

December 19, 2007

December 19, 2007

Deputy Commissioner Norma Gyle

Department of Public Health
410 Capitol Avenue - MS 13COM

P.O. Box 340308
Hartford, CT 06134-0308

Dear Deputy Commissioner Gyle:

You have asked this office for an opinion as to whether Tilcon Connecticut, Inc. (Tilcon) may select and pay for an independent third party environmental evaluation under Public Act 07-05 §64 (June Sp. Sess.).  For the reasons set forth below, we conclude that Tilcon may not select the independent third party evaluator or pay for the evaluation required by the act.

Section 64 of Spec. Sess. P.A. 07-5 requires the Department of Public Health (<st2:country-region>DPH</st2:country-region>), within 90 days of the act's October 6, 2007 effective date, to commission and supervise an independent third party environmental evaluation of the potential effects of allowing the city of New Britain to change the use of its class I and class II water company land to allow the lease of about 131.4 acres (the “0” Biddle Pass in Plainville), for quarrying stone and other minerals.   The act further requires that <st2:country-region>DPH</st2:country-region> must commission the evaluation "within available resources." 

The act specifies the minimum factors the evaluation must analyze.   These factors include the:  (1) likely environmental impacts such change of use will have on local hydrology, forest ecology and wetlands systems; (2) long-term water supply needs for the city of New Britain as well as “interconnected and reasonably feasibly interconnected” water companies in the general geographic region surrounding the areas supplied by the city of New Britain’s water reservoir system; (3) likely safety yield increase to the city of New Britain’s water reservoir system that could be supplied by the change of use; (4) likely impact of the change of use on raw reservoir water quality;  (5) steps available to minimize environmental impacts from the proposed change of use; and (6) a summary of conclusion, comparing the environmental impacts and potential environmental and water supply benefits from such change of use.

The act also requires the Commissioner of Public Health to review the evaluation as it applies to <st2:country-region>DPH</st2:country-region>’s “jurisdiction over and duties concerning water supplies, water companies, and operators of water treatment plants and water distribution systems” in order to provide guidance to the city of New Britain’s water department on the best management practices identified in the environmental evaluation for the protection of the public water supply and the public health.

The Commissioner of Public Health must provide to the Commissioner of Environmental Protection the results of the environmental evaluation.   The Commissioner of DEP must then review and comment on the evaluation within 90 days after receiving the evaluation.    The Commissioner of Public Health, by March 1, 2008, must submit the results of the evaluation and the department’s reviews and recommendations to the Public Health Committee. 

In your letter, you have provided the following relevant facts.  The city of New Britain intends to lease class I and class II water company land to Tilcon for purposes of quarrying stone and minerals.   The city of New Britain and Tilcon are in the process of identifying a third-party to perform the environmental evaluation as required by the act.  The legislature has not appropriated any funding to the Department of Public Health to implement the act.   Tilcon has, therefore, offered to pay for the evaluation to be performed.

            The act specifics that “<st2:country-region>DPH</st2:country-region> shall, within available resources, commission and supervise an environmental evaluation, to be conducted by an independent third party approved by the department.” By using the phrase “within available resources” immediately before the word “commission” the legislature intended that the cost of the evaluation be borne by the DPH and not by either the city of New Britain or Tilcon.  To allow either New Britain or Tilcon to pay for the independent evaluation, would render the phrase "DPH shall, within available resources, commission and supervise an environmental evaluation" superfluous.  "In construing statutes, [the court] presume[s]that there is a purpose behind every sentence, clause or phrase used in an act and that no part of a statute is superfluous."  Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 536-37 (2003).

This interpretation is buttressed by the legislative Office of Fiscal Analysis’s fiscal note on the act:

No funding has been included with Public Act 07, No. 07-1 June Sp. Sess. (the Budget Act) to allow the Department to support the costs of a third party environmental evaluation.¹  The requirement that the department do so within its available resources may result in one of four outcomes:  (1)  <st2:country-region>DPH</st2:country-region> will proceed with the evaluation, and will require a deficiency appropriation during FY 08; (2) <st2:country-region>DPH</st2:country-region> will delay the evaluation pending the approval of additional appropriations to meet this mandate in the future fiscal years; (3) <st2:country-region>DPH</st2:country-region> will shift resources from other department priorities, thereby impacting existing departmental programs; or (4) <st2:country-region>DPH</st2:country-region> will not conduct the evaluation. 

Because the legislature specifically required the evaluation to be paid for "within available resources" of DPH, neither Tilcon nor the city may pay for the evaluation that must be conducted.

Furthermore, the act specifically requires the evaluation to be performed by an “independent third party” under the supervision of DPH to examine the potential impact the change of use of 131.4 acres of class I and II lands by the city of New Britain for quarrying purposes poses to the city’s public water supply and the public health.  The word independent is not defined in the  Public Act.  In the absence of an express statutory definition, courts often look to the common understanding of words found in dictionaries.  Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 682 (2004).  The word "independent" means: "2. Free from the influence, guidance or control of another or others: SELF-RELIANT <an independent thinker> 3.  Not influenced or determined by someone or some thing else <an independent poll of opinion." Webster's II New Riverside University Dictionary, (1994). 

If an environmental evaluator is selected by entities who stand to benefit financially from an evaluation, the independence of the evaluator is compromised. The evaluator may be influenced by those financially interested entities who participated in the selection, or the evaluator may have been specifically selected by those financially interested parties due to shared viewpoints or opinions between the evaluator and the financially interested parties.  Because a land lease would financially benefit both the city of New Britain and Tilcon, neither entity can be involved in the selection of an "independent" third party evaluator.

We conclude that DPH is required to use only its own resources to pay for the independent third party environmental evaluation. We also conclude that the evaluator cannot be selected by parties who have a pecuniary interest in the outcome of the evaluation.   DPH must select the independent evaluator in accordance with state contracting procedures.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

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