Appeal of Katherine Lajoie & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0242, Appeal of Katherine Lajoie & a., the
court on March 17, 2015, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The petitioners, who live near the municipal waste combustion facility
operated by Wheelabrator Claremont Company, L.P. (Wheelabrator), appeal a
decision of the New Hampshire Air Resources Council (Council) upholding the
decision of the New Hampshire Department of Environmental Services (DES) to
renew Wheelabrator’s title V operating permit. We affirm.

Our standard of review of the Council’s decision is set forth in RSA
541:13 (2007). See RSA 21-O:14, III (2012). Under RSA 541:13, we will not set
aside the Council’s decision except for errors of law, unless we are satisfied, by
a clear preponderance of the evidence, that it is unjust or unreasonable. The
Council’s findings of fact are presumed prima facie lawful and reasonable. RSA
541:13. In reviewing those factual findings, “our task is not to determine
whether we would have found differently than did the [Council], or to reweigh
the evidence, but rather to determine whether the findings are supported by
competent evidence in the record.” Appeal of Dean Foods, 158 N.H. 467, 474
(2009) (quotation omitted). “The [Council’s] findings of fact will not be
disturbed if they are supported by competent evidence in the record, upon
which the [Council’s] decision reasonably could have been made.” Id.
(quotation omitted). We review the Council’s statutory interpretation de novo.
See Appeal of Old Dutch Mustard Co., 166 N.H. 501, 506 (2014).

For its part, the Council may consider “[o]nly those grounds set forth” in
the notice of the appeal of DES’s decision. RSA 21-O:14, I-a (2012). The
Council determines whether the decision by DES “was unlawful or
unreasonable by reviewing the administrative record together with any
evidence and testimony the parties to the appeal may present.” Id.

The petitioners first argue that DES erred when it granted Wheelabrator
a waiver of the “timely application” requirement set forth in New Hampshire
Administrative Rules, Env-A 609.07(b), which provides: “For the renewal of a
title V operating permit, an application shall be considered timely if it is filed
with the department at least 6 months prior to the designated expiration date
of the current title V operating permit.” In this case, Wheelabrator had a 2004
permit that was set to expire on June 30, 2009. On June 23, 2008, DES
informed Wheelabrator that, to renew its permit, it had to submit a renewal
application by December 31, 2008. Wheelabrator’s renewal application was
postmarked December 30, 2008, but was not received by DES until January 2,
2009. On March 31, 2009, DES determined that Wheelabrator’s renewal
application was complete, but that the application had not been submitted on
time.

On June 2, 2009, Wheelabrator submitted its waiver request pursuant to
New Hampshire Administrative Rules, Env-A 205. See N.H. Admin. Rules,
Env-A 205.06 (allowing DES to grant waivers from strict compliance with
administrative rules). On June 24, 2009, DES granted the waiver with the
conditions that Wheelabrator could continue its operations consistent with its
existing permit, as amended in 2006 and 2007, and that the waiver would be
in effect “until such time as DES takes final action on Wheelabrator’s title V
renewal application by granting or denying [that] . . . application.” See N.H.
Admin. Rules, Env-A 609.08(a) (“If an applicant files a timely and complete
application for the issuance or renewal of a title V operating permit, the failure
to have a title V operating permit shall not be considered a violation of this part
unless and until the department denies the requested permit . . . .”).

Following a five-day evidentiary hearing, the Council determined that the
petitioners failed to meet their burden of demonstrating that the decision by
DES to grant the waiver was “illegal or arbitrary or capricious.” The Council
observed that the petitioners had not cited any authority for their argument
that DES lacked the ability to grant the waiver at issue and “offered no
evidence that granting what amounted to a two-day extension of time to file the
renewal application was ‘arbitrary and capricious’ or, as they seem to suggest,
would somehow have negatively affected their right to participate in the public
comment and hearing process.” The Council determined that “the eight-year
lapse in time between the public’s right to participate in the 2004 permitting
process and the renewal proceedings would have occurred whether the renewal
application was filed timely on December 31, 2008, or two days later, on
January 2, 2009.”

On appeal, as before the Council, the petitioners argue that DES lacked
the authority to grant the waiver, but offer no support for this argument. To
the extent that the petitioners contend that, by granting the waiver, DES
violated Section 129(e) of the federal Clean Air Act of 1990, we disagree. See 42
U.S.C. § 7429(e) (2012).

Because the meaning of Section 129(e) is a question of federal law, we
interpret it “in accordance with federal policy and precedent.” Dube v. N.H.
Dep’t of Health & Human Servs., 166 N.H. 358, 364 (2014). When interpreting
a statute, we begin with the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning. Id. When

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the language of the statute is clear on its face, its meaning is not subject to
modification. Id. We will neither consider what Congress might have said, nor
add words that it did not see fit to include. Id.

Section 129(e) provides, in pertinent part:

Notwithstanding any other provision of this chapter, each permit
for a solid waste incineration unit combusting municipal waste
issued under this chapter shall be issued for a period of up to 12
years and shall be reviewed every 5 years after date of issuance or
reissuance. Each permit shall continue in effect after the date of
issuance until the date of termination, unless the Administrator or
State determines that the unit is not in compliance with all
standards and conditions contained in the permit. Such
determination shall be made at regular intervals during the term of
the permit, such intervals not to exceed 5 years, and only after
public comment and public hearing.

42 U.S.C. § 7429(e). The pertinent regulation similarly provides that permits
“for solid waste incineration units combusting municipal waste” may be issued
“for a period not to exceed 12 years” and such permits must be reviewed “at
least every 5 years.” 40 C.F.R. § 70.4(b)(3). DES complied with these
provisions by: (1) issuing a permit to Wheelabrator in 2004, which expired in
2009; (2) initiating the review process before the 2004 permit expired; and (3)
renewing Wheelabrator’s permit only “after public comment and public
hearing.” 42 U.S.C. § 7429(e).

Although the petitioners invoke the State Constitution, they have not
demonstrated that they preserved that argument for our review by raising it in
the Council proceedings. Nor have they developed it sufficiently for our review,
even if it were preserved.

The petitioners’ remaining arguments are as follows: (1) DES erred by
issuing the title V permit to Wheelabrator because Wheelabrator failed to
disclose that it was incinerating used filter bags; (2) DES erred when it did not
disclose the filter bag issue to the public during the permitting process; and (3)
the Council erred because its order denying the petitioners’ motion for
reconsideration lacks factual findings. The petitioners have not demonstrated
that they preserved these arguments for our review as the arguments either are
not included in their notice of appeal to the Council or are substantially
different from the arguments they made in the Council proceedings. See RSA
21-O:14, I-a. Moreover, to the extent that these arguments require us to review
the Council’s factual findings, we are unable to do so because the petitioners
have not provided a complete record on appeal. Although the Council
conducted a five-day evidentiary hearing, the petitioners have had transcribed
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only the parties’ closing arguments. Without a complete transcript, we must
assume that the record supports the Council’s factual findings. See Bean v.
Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

Eileen Fox,
Clerk

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