In a mixed ruling, the New Hampshire Waste Management Council concluded that the Department of Environmental Services did not act unlawfully when it relied on an outdated solid waste management plan to review and approve the Stage VI expansion permit for the Casella Waste Systems landfill in Bethlehem, but it did act unlawfully when it found the expansion provided a “substantial public benefit.”
In October 2020, the DES approved a Stage VI expansion permit equating to about 1 million tons for Casella’s North Country Environmental Services landfill along Trudeau Road.
That approval decision was appealed by the Conservation Law Foundation, which argued that DES acted unlawfully and unreasonably in determining that the NCES landfill provided a “substantial public benefit” as required under N.H. RSA 149-M, the state’s solid waste management statute.
After two days of hearings in February, the WMC on Wednesday issued a 20-page final order that denied in part and granted in part CLF’s appeal.
New Hampshire RSA 149-M sets forth a solid waste management plan to determine New Hampshire’s solid waste capacity needs and waste reduction goals with six methods of waste disposal that declared land-filling the least preferred method in the waste management hierarchy.
Under the law, DES was to prepare a solid waste plan in 1998 and update the plan every six years thereafter. The last update was in 2003.
In the WMC’s order, WMC hearing officer Zachary Towle said the council found that DES acted reasonably in granting the permit even though, by DES’s own acknowledgment, NCES would operate during both a period of capacity excess and capacity need.
Casella’s initial Stage VI application included a company-estimated disposal of 400,000 tons annually, which would have resulted in the landfill reaching capacity in about 2023, before there was a capacity need.
In 2020, DES concluded there would not be a landfill capacity shortfall in the state until after 2025.
Under the company’s modified permit approved by DES, NCES Stage VI would operate for six years, beginning in 2021, with plans to reduce the annual amount of land-filled waste in order to landfill through the year 2026.
While the May 11 WMC decision concludes that DES acted lawfully by relying on the 2003 state solid waste management plan and determining a capacity need during the lifespan of the NCES facility, Towle said DES acted unlawfully in determining that NCES would provide a substantial public benefit based on New Hampshire’s capacity need and the NCES landfill’s ability to accommodate waste generated within New Hampshire.
The record reflects that NCES would operate for a period without capacity need, and capacity need is a required element for a finding of a substantial public benefit under 149-M, said Towle.
“Testimony from NHDES indicated that the failure of NHDES to update the 2003 plan was a matter of financing, manpower, and time,” said Towle. “The council heard that NHDES’s failure to update the 2003 plan was not a matter of choice by NHDES, but was a matter of legislative budgeting. The council ultimately decided that, to impose the requirement that RSA 149-M:11, III(c) can only be satisfied if there is an updated state waste management plan would result in the state-detrimental result that no solid waste facilities can be approved by NHDES until a new solid waste plan is approved. Such a result could be catastrophic to the management of solid waste within New Hampshire, far beyond any potential repercussions the state may suffer by NHDES relying on the goals set forth in an out-of-date waste management plan.”
The council, however, remanded to DES Commissioner Robert Scott its finding that DES acted unlawfully in determining that Stage VI provides a substantial public benefit when NCES was projected to operate during a period without capacity need.
In a statement, CLF representatives said WMC ruled in favor of what was a critical issue in the group’s appeal and WMC agreed that the landfill does not provide a substantial public benefit “because there is no need for most of the disposal capacity it provides,” and no need for the landfill for five of the six Stage VI years.
“We’ve been saying for years that there is simply no need for this facility,” said CLF staff attorney Heidi Trimarco. “This ruling makes clear that the state cannot permit new landfills that aren’t needed to satisfy New Hampshire’s disposal needs. It’s an important decision not only to get the state off its current landfill-expansion treadmill, but also to prevent the continued influx of out-of-state waste.”
About half of the waste disposed of in New Hampshire landfills comes from out of state, and building unneeded landfills simply allows more out-of-state waste to be trucked into New Hampshire for the benefit of private waste companies and to the detriment of local communities, said CLF representatives.
It was undetermined on Monday what a remanding of the substantial public benefit requirement to DES will mean for the case, what are the possible outcomes, and if DES will again review the Stage VI permit.
Because it remains a pending legal matter, DES officials referred all questions to the New Hampshire Department of Justice.
“This remains a pending legal matter under review by the state,” said Michael Garrity, spokesman for the NHDOJ. “At this point any comment by the New Hampshire Department of Justice would be premature.”
CLF representatives could not be reached for comment before press time Monday to determine their next steps.
At the New Hampshire statehouse, House Bill 1420, also targeting the state’s solid waste plan, seeks to prohibit the issuance of new landfill permits until the state’s solid waste plan is updated.
According to the docket, the New Hampshire House of Representatives has concurred with a Senate amendment to the bill.