February 2, 2021
- Whether the New Hampshire Waste Management Council (Council) erred in determining that the Department of Environmental Services acted reasonably in granting a permit to Waste Management of New Hampshire, Inc. notwithstanding findings that a condition of the permit was ambiguous.
- Whether the New Hampshire Waste Management Council erred in premising its decision on the occurrence of future negotiations to resolve said ambiguity.
In 2017, Waste Management of New Hampshire, Inc. (WMNH) applied to the Department of Environmental Services (DES) for a permit authorizing an expansion of Turnkey Landfill in Rochester (TLR), allowing it to increase TLR’s footprint by approximately fifty-eight acres. The permit was approved because it was determined that the TRL expansion would provide a substantial public health benefit if WMNH complies with certain conditions. Permit Condition 21 requires that each year the facility is in operation, WMNH must demonstrate that the sources from which it accepted municipal solid waste and/or construction debris for disposal achieved a minimum thirty percent waste diversion rate to more preferred methods than landfilling. If WMNH cannot make such demonstration, then it must submit a report to DES evaluating the rate achieved, primary factors affecting the diversion rate, and the practicable measures that WMNH will implement to improve the diversion rate. Condition 21 also requires that WMNH assist 15 or more solid waste generators per year in implementing programs that further solid waste goals and hierarchy set forth in the relevant State statutes. The Conservation Law Foundation (CLF) appealed the order denying CLF’s appeal of the permit issued by the DES.
The Court agreed with the Council’s conclusion that the DES did not act unreasonably in determining that Condition 21, as written, would assist the State in achieving the implementation of the hierarchy goals under the statute because Condition 21, in part, provides the DES with a data-gathering mechanism. The Court further found that the permit will assist the State in achieving its waste diversion goal and disposal hierarchy by supplying DES with crucial information and will cause WMNH to work with its customers to increase diversion rates. The Court found that the permit, therefore, will assist the State’s efforts to achieve its waste management reduction goals and hierarchy. Based on evidence in the record, the Court agreed with the Council that the CLF failed to meet its burden of showing that the DES active unreasonably when it concluded that the permit satisfied the substantial public benefit requirement. Lastly, the Court pointed out that the lack of a statewide definition of how diversion rates should be calculated does make it problematic to determine where the State stands with regard to the diversion goals set forth in the relevant statutes, and the Court encourages either the legislature or DES to establish a calculation method.
Conservation Law Foundation, Inc., of Concord (Thomas F. Irwin on the brief and orally), for the petitioner. McLane Middleton, of Concord (Mark C. Rouvalis, Gregory H. Smith, and Viggo C. Fish on the brief, and Mr. Rouvalis orally), and Gail M. Lynch of Hampton, on the brief, for the respondent. Gordon J. MacDonald, attorney general (Joshua C. Harrison, assistant attorney general, on the memorandum of law), for the New Hampshire Department of Environmental Services.