Mass. firm sues over N.H. C&D burning ban
A Massachusetts firm that accepts construction and demolition waste banned from that state’s landfills is suing New Hampshire in an attempt to overturn Granite State laws that prevent burning that waste here.
New England Recycling and a construction and demolition recycling trade group filed the lawsuit Sept. 12 in U.S. District Court in Concord against New Hampshire Department of Environmental Service Commissioner Thomas Burack and Attorney General Kelly Ayotte, charging that they are enforcing laws that violate the Commerce Clause of the U.S. Constitution in order to protect the virgin wood pellet industry in New Hampshire.
New England Recycling “is a company on the forefront of a rapidly developing industry around the country,” said Mansfield, Mass., attorney Lee Blais. “It should be regulated like everyone else, by what goes out of the smokestack, not what goes into it.”
“It’s not surprising that those who would profit from the burning of toxic construction and demolition debris are unhappy with New Hampshire’s law,” said Colin Manning, spokesman for Gov. John Lynch. “The governor and the Legislature weren’t about to let New Hampshire become a dumping ground for this toxic waste, and by passing this law, made the right choice for our state, and for the health and safety of our people.”
Massachusetts doesn’t ban C&D incineration, but it does ban C&D waste from its landfills. However, New England Recycling, located in Taunton, Mass., boasts on its Web site that it is “one of the few approved Construction & Demolition (C&D) Recycling facilities that ACCEPTS ALL of the material that is now BANNED FROM ALL LANDFILLS in Massachusetts.”
In another part of the site, the company presents a list of items it will not accept, including wood with lead paint, which is a major concern of those who oppose burning C&D fuels.
According to the Massachusetts Department of Environmental Protection’s Web site, New England Recycling was permitted to handle some 550 tons per day of waste. For all of 2006 – the latest figures available – it accepted 73,000 tons of waste, almost triple the amount accepted in 1998, and a 68 percent increase from 2005.
Blais said he did not know how much C&D-derived waste New England Recycling would export to New Hampshire if the state ban on burning were lifted.
Genesis of the ban
The New Hampshire laws at issue consist of temporary moratoriums on burning C&D waste dating back to 2005 as well as three bills passed in 2007: one defining C&D waste so it would not be considered solid waste; the second, making the waste ban permanent and expanding it to any fuel derived from C&D waste; and a third excluding C&D-derived fuels from a list of renewable fuels allowed to produce electricity in the state.
These laws also ban incineration of C&D waste produced in New Hampshire, but because the amount of local waste is relatively small compared to the waste produced by states like Massachusetts and New York, the suit contends that the effective result is to impede the importation of C&D fuels for the “protection of the failing New Hampshire virgin wood industry” and “keeping New Hampshire from becoming the ‘dumping ground’ of the Northeast.”
The legislation against burning C&D waste in New Hampshire arose out of opposition to a proposal to transform a virgin wood-burning plant in Hopkinton into a C&D waste-to-energy facility (proposed by Bio Energy).
The state had permitted the facility, but neighbors started opposing it after NHBR revealed in a series of articles starting in 2003 that the permit allowed the facility to emit far more lead into the atmosphere than any other facility in the state. The permit was revoked after another NHBR revelation — that a partner involved in Bio Energy was convicted for witness tampering and jailed during the permitting process, and state officials were not kept abreast of those facts.
The C&D proposal was withdrawn and now Bio Energy is having trouble obtaining a permit to burn even virgin wood.
Both New England Recycling and an Illinois trade organization, Construction Materials Recycling Association Issues And Education Fund Inc., say they do not dispute that the air quality controls of the Bio Energy plant were “inadequate” and did not support the Hopkinton proposal.
Blais adds that there has been and is no relationship between Bio Energy and New England Recycling.
“It’s about the policy of limitation. It’s not that we are interested in a particular customer up there,” Blais said.
The suit contends that Governor Lynch — “who began his political career in Hopkinton” and was “closely allied with several groups actively opposing C&D fuel anywhere in the state” — replaced a DES commissioner who “favored less stringent regulation” of C&D incinerators with Burack. (Lynch is a resident of the town but has held no other elected office besides governor.)
The suit maintains that it is possible to burn C&D fuel without dangerously polluting the air and notes that the new laws contained exemptions allowing towns to burn C&D in landfills, without any of the pollution controls that would be in the regulated facilities now outlawed by the state.
While such facilities might emit more lead, arsenic, mercury and other toxics into the atmosphere, the emissions could be “below state and federal air regulations,” says the suit, quoting a University of New Hampshire study.
The suit also contends that C&D wood is “carbon neutral.”