Appeal of Conservation Law Foundation

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Waste Management Council
No. 2020-0049

APPEAL OF CONSERVATION LAW FOUNDATION
(New Hampshire Waste Management Council)

Argued: November 17, 2020
Opinion Issued: February 2, 2021

Conservation Law Foundation, Inc., of Concord (Thomas F. Irwin on the
brief and orally), for the petitioner.

McLane Middleton, Professional Association, 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.

DONOVAN, J. The petitioner, Conservation Law Foundation (CLF),
appeals an order of the New Hampshire Waste Management Council (Council)
denying CLF’s appeal of a permit, issued by the New Hampshire Department of
Environmental Services (DES), which authorizes the expansion of a landfill
owned by the respondent, Waste Management of New Hampshire, Inc.
(WMNH).1 CLF argues that the Council committed legal error by: (1)
determining that DES acted reasonably in granting the permit despite finding
that a condition therein is ambiguous; and (2) premising its decision on the
occurrence of future negotiations between DES and WMNH to resolve the
ambiguity. We affirm because we conclude that the permit’s ambiguities do
not render the Council’s decision unlawful.

I. Facts

The following facts were found by the Council or are supported by the
administrative record. WMNH owns and operates the Turnkey Recycling and
Environmental Enterprise facility, a solid waste management facility located in
Rochester, where WMNH engages in various waste management activities, such
as composting leaf and yard waste, extracting gas from landfills, and
maintaining its fleet of vehicles. The facility also includes three plots of land
dedicated to landfills, two of which are closed and inactive. The third plot,
known as Turnkey Landfill Rochester III (TLR-III), remains open and active.2

In May 2017, WMNH applied to DES for a permit authorizing it to expand
TLR-III. The permit would allow WMNH to increase the landfill’s existing 218-
acre footprint by approximately 58 acres.3 According to DES’s projections,
without the proposed expansion New Hampshire’s waste disposal capacity will
fall short of demand beginning in 2020. If the permit were to be approved,
disposal capacity would meet the projected need through 2034.

In June 2018, DES approved the permit. As part of the approval
process, DES determined, as required by statute, that the TRL-III expansion
would provide a substantial public benefit if WMNH complies with certain
conditions. See RSA 149-M:11, III, IX (2005). Specifically, Condition 21 of the
permit requires, among other things, that each year the facility operates,
WMNH “[d]emonstrate that the sources, in aggregate, from which [it] accepted
municipal solid waste (MSW) and/or construction and demolition (C&D) debris
for disposal achieved a minimum 30 percent waste diversion rate to more
preferred methods than landfilling as outlined in” New Hampshire’s statutory
waste disposal hierarchy. See RSA 149-M:3 (2005). If WMNH cannot
demonstrate a minimum 30 percent diversion rate, then it must submit a
report to DES evaluating the diversion rate achieved, the “primary factors

1DES submitted a memorandum of law explaining that it “concurs in the arguments and
positions of WMNH in its brief.”

2The initial permit for TLR-III was granted in 1995, and subsequent permits have allowed it to
expand.

3The permit would also allow TLR-III to expand vertically, increasing its permitted disposal
capacity by approximately 15.9 million cubic yards. To ensure that landfill capacity is available
through 2034, DES capped the amount of airspace that may be filled annually.

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affecting [the] diversion rate,” and the “practicable measures that [WMNH] will
undertake to improve the diversion rate and an implementation schedule for
doing so.” Condition 21 further requires that WMNH “assist 15 or more New
Hampshire solid waste generators per year with establishing or improving
programs that assist in the implementation of the goals and hierarchy” in New
Hampshire’s solid waste disposal statutes. See RSA 149-M:2 (2005), :3.

CLF appealed to the Council DES’s decision to grant the permit. As
relevant here, it argued that the permit, including Condition 21 in particular, is
“inconsistent with, and premised on a failure to comply with, public benefit
requirements pertaining to solid waste management planning, and statutorily
required state solid waste planning and reporting.” The Council heard five
days of testimony from witnesses called by CLF and WMNH and received
hundreds of pages of exhibits from both parties.

The Administrator of DES’s Solid Waste Management Bureau, which was
responsible for reviewing the permit application, explained how Condition 21,
which takes effect in 2021, will function. DES expects that WMNH will obtain
diversion data from its waste generators, demonstrate that those generators, in
the aggregate, divert 30 percent of their waste, and report that data to DES. If
WMNH fails to demonstrate that its waste generators are diverting 30 percent
of their waste, “that’s not a violation of the permit,” but rather triggers the
requirement that WMNH analyze what obstacles impede reaching the 30
percent threshold and what measures are needed to achieve that number.4
According to a DES witness, Condition 21’s diversion threshold and reporting
requirement are novel and have not been included in a solid waste or landfill
permit before. The Council noted that DES is incorporating similar conditions
into subsequent waste management permits.

The Council heard testimony that there is currently no standard for
calculating diversion rates. The Director of DES’s Waste Management Division
testified that “[d]iversion is not specifically defined in [New Hampshire’s Waste
Management statute] or in [DES’s] solid waste rules.” See RSA ch. 149-M
(2005 & Supp. 2020); N.H. Admin. R., Env-Sw 102. He further testified,
however, that he believes the statutory language suggests that “diversion
includes basically anything that is or could . . . end[] up as a solid waste, any
method including waste reduction or reuse, any kind of method whatsoever,
composting, that keeps that waste from ultimately being disposed by either
landfilling or incineration.” See RSA 149-M:2, I.

The testimony also reveals that DES and WMNH did not, prior to the
permit’s approval, discuss the precise method by which the diversion rate will

4A witness for WMNH testified that, if the 30 percent threshold is not met, he expects that WMNH
could take measures such as engaging in public education, solid waste operator training
programs, or conducting market studies.

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be calculated for purposes of Condition 21. The DES staff member who was
the primary reviewer of the permit explained that, before Condition 21 goes into
effect, DES will discuss with WMNH how it will calculate the diversion rate to
ensure consistency. A senior manager for WMNH similarly testified that he
expects WMNH will consult with DES to determine the details of the
calculation, “much like other permit conditions that [WMNH] regularly deal[s]
with.” According to this witness, WMNH acknowledges that the methodology
for calculating the diversion rate “is something we’re going to have to further
review and work with [DES] on.”

Because the method by which the diversion rate will be determined is not
set forth in the permit, it is unclear how Condition 21’s diversion rate will be
calculated and, specifically, what waste will be included in that calculation.5
For example, the methodology WMNH has previously employed to calculate its
diversion rate considers leaf and yard waste as diverted, although such waste
cannot be disposed of at TLR-III and, according to a DES witness, is not
considered solid waste in New Hampshire. A DES witness testified that leaf
and yard waste would not be included in Condition 21’s diversion calculation.
The senior manager for WMNH agreed, noting that TLR-III’s current
calculations likely yield a higher diversion rate than that which will be
calculated under Condition 21, in part because leaf and yard waste may not
count towards that rate.6

With regard to Condition 21’s requirement that WMNH assist fifteen or
more New Hampshire waste generators in establishing or improving diversion
programs, DES witnesses testified that WMNH may work with the same
generator two years in a row, “[a]s long as they’re establishing or improving
diversion.” The senior manager for WMNH testified that WMNH has an idea “as
to how [it] would select . . . or identify [the fifteen generators with which it will
work] based on trying to achieve the most success, the most quantity,” and
that it would also discuss its selections with DES.

5Condition 21 does state that the diversion calculation “shall not be required to include” certain
types of MSW and C&D waste for which there is “no environmentally safe or economically sound
diversion alternative[] to landfilling.”

6 Another example of waste that may or may not be considered diverted for purposes of Condition
21 is “alternative daily cover.” At the end of each day, landfilled waste is covered with
approximately six inches of an approved cover material, such as soil. The daily cover material
helps mitigate problems with “vermin, birds,” and the inevitable odor emanating from tons of
newly deposited garbage. Certain C&D waste, which would have otherwise been landfilled, can be
used as alternative daily cover. This waste thus serves a purpose other than being mere landfilled
waste, but still ultimately ends up in the landfill. WMNH currently includes alternative daily cover
in calculating its C&D diversion rate and, although the Council noted that alternative daily cover
“exists in that form for only one day,” DES witnesses indicated that alternative daily cover would
be included in calculating the rate.

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 After deliberating for a full day, the Council rejected CLF’s appeal. In its
written decision, the Council described several “ambiguities” with regard to
Condition 21, including that it is “unclear whether certain materials are validly
included in the definition [of diversion] given their particular characteristics”
and “there are no requirements describing the makeup of the [fifteen]
generators” with which WMNH will work. The Council acknowledged that
Condition 21 “was vague in several respects[] and would require flexibility and
refinement in coming to an agreed definition of ‘diversion’ for this provision to
be enforceable.”

On a motion to find that DES “acted unreasonably in failing to provide a
definition of the 30 percent diversion rate contained in [Condition 21],” thus
“rendering the public benefit requirement unmet,” the Council split its vote,
three in favor and three opposed. Because CLF bore the burden of
demonstrating that DES’s decision was “unlawful or unreasonable,” RSA 21-
O:14, I-a (2020), the split vote resulted in the denial of its appeal.7 CLF filed a
motion for rehearing and reconsideration, which the Council denied. This
appeal followed.

II. Standard of Review

CLF bears the burden of demonstrating that the Council’s decision is
clearly unlawful or unreasonable. RSA 541:13 (2007); see RSA 21-O:14, III
(2020). We will not set aside or vacate the Council’s decision unless it contains
an error of law, or CLF establishes, by a clear preponderance of the evidence,
that its decision was unjust or unreasonable. RSA 541:13. We deem the
Council’s findings on questions of fact properly before it to be prima facie
lawful and reasonable. Id.

III. Discussion

New Hampshire’s Solid Waste Management statute requires DES to deny
any permit application when the applicant fails to demonstrate that it satisfies
three “substantial public benefit” criteria. RSA 149-M:11, III, IX. “‘Public
benefit’ means the protection of the health, economy, and natural environment
of the state of New Hampshire . . . .” RSA 149-M:4, XVII (Supp. 2020). As
relevant here, we need only consider the criterion which requires that, in
determining “whether a proposed solid waste facility provides a substantial
public benefit,” DES assess “[t]he ability of the proposed facility to assist the

7The Council also determined that: (1) DES did not act unreasonably in determining that the
permit sufficiently addressed the State’s waste disposal capacity needs; (2) in light of the lack of
regulations regarding certain chemicals, DES did not act unreasonably in granting the permit
without a requirement that WMNH test for those chemicals; and (3) DES did not act unlawfully or
unreasonably in granting the permit without conditions addressing methane gas emissions from
the landfill. CLF does not challenge these findings on appeal.

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state in achieving the implementation of” New Hampshire’s waste reduction
hierarchy and goals. RSA 149-M:11, III(b).

New Hampshire’s waste reduction goal is to, “by the year 2000, . . .
achieve a 40 percent minimum weight diversion of solid waste landfilled or
incinerated on a per capita basis.” RSA 149-M:2, I. “Diversion shall be
measured with respect to changes in waste generated and subsequently
landfilled or incinerated in New Hampshire. The goal of weight diversion may
be achieved through source reduction, recycling, reuse, and composting, or any
combination of such methods.” Id. The solid waste disposal hierarchy sets
forth, in descending order of preference, the following waste management
methods: source reduction, recycling and reuse, composting, waste-to-energy
technologies, incineration without resource recovery, and landfilling. RSA 149-
M:3.

CLF argues that, in light of the Council’s finding that Condition 21 is
ambiguous with regard to how the diversion rate will be calculated and the
parameters for selecting the fifteen waste generators with which WMNH must
work to lower their diversion rates, DES could not have determined that the
permit would assist the State in achieving its solid waste diversion goal or
hierarchy, which inhibited it from certifying that the facility provides a
substantial public benefit. See RSA 149-M:2, :3, :11, III(b). Accordingly, CLF
argues that the permit is legally flawed and that the Council should have
remanded the matter to DES. We disagree.

Undisputed evidence in the record supports the Council’s conclusion
that DES did not act unreasonably in determining that Condition 21, as
written, will “assist the state in achieving the implementation of the hierarchy
and goals under RSA 149-M:2 and RSA 149-M:3.” RSA 149-M:11, III(b). The
Director of DES’s Waste Management Division described Condition 21 as a
“very progressive condition” that would increase diversion rates without
“sett[ing] [WMNH] up for failure.” He explained that Condition 21 “imposes
concrete realistic direct actions that [WMNH] would need to do that would
absolutely directly assist . . . with reaching the hierarchy and the goals set out
in the statute.” An attorney for CLF, who testified at the hearing, similarly
stated that, although she believed it “could do much . . . more,” Condition 21
“will assist the State in achieving its” waste reduction goals.

The record indicates that Condition 21 will do so, in part, by providing
DES a much-needed data-gathering mechanism. A DES staff member testified
that it is “unclear” whether the State has achieved the 40 percent statutory
diversion goal because DES does not have access to the full amount of data
necessary to make such a determination. See RSA 149-M:2, I. He further
testified that the State’s diversion rate has not been calculated recently, in part

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because the amount of data necessary to determine the precise rate is vast.8
Indeed, according to the CLF attorney, no one “know[s] what the waste in New
Hampshire is actually composed of.” Thus, in order to ascertain meaningful
numbers with respect to waste and diversion, DES is seeking to improve the
quality of the data it collects. One challenge to collecting the necessary data is
that waste generators themselves do not report diversion numbers directly to
DES. Rather, data reported to DES comes, in part, from authorized and
permitted waste management facilities, like the Turnkey Recycling and
Environmental Enterprise facility.

Condition 21 seeks to fill the gap in data and provide DES with valuable
information by requiring that WMNH demonstrate that its waste generators
“achieved a minimum 30 percent waste diversion rate” and, if the 30 percent
threshold is not met, report what the rate was, the primary factors affecting the
rate, and practicable measures that WMNH will take to improve it. According
to a DES staff member, any effort by WMNH to contact its generators and
require that they “think about diversion and provide that information to
[WMNH],” which would report the data to DES, would provide access to data
that DES currently lacks. Such data collection “would assist [DES] in working
towards” the statutory goals, in part because it will increase DES’s
understanding of where the State stands with regard to waste diversion. As the
CLF attorney testified, “getting data from haulers as well as disposal facilities is
an excellent first step”: “more data and better data with consistent metrics
around [diversion] weight is . . . a good thing.”9 Thus, regardless of how the
diversion rate is calculated under Condition 21, the permit will assist the State
in achieving its waste diversion goal and disposal hierarchy by providing DES
crucial information about the composition of the waste stream, in particular
whether and how diversion is being achieved through “source reduction,
recycling, reuse, and composting,” RSA 149-M:2, I, informing the development
and implementation of future diversion strategies. See RSA 149-M:2, :3.

The record also supports the Council’s decision because it demonstrates
that Condition 21 will cause WMNH to work with its customers to increase
their diversion rates. According to a DES witness, prior to 2021, when
Condition 21 takes effect, a waste generator “could contract with [WMNH] for
whatever waste they have with no accountability or even any thought to divert

8Contributing to the difficulty, and perhaps impossibility, of calculating an exact and total
diversion rate is the problem of capturing mundane and essentially immeasurable diversion such
as “backyard composting . . . or donation to . . . a clothing drive.”

9CLF draws our attention to testimony from the WMNH senior manager that WMNH would not
turn away waste intended for TLR-III from generators who refuse to provide diversion data. Even
assuming, however, that some waste generators will not provide diversion information to WMNH,
the record reflects that any increase in the data regarding the waste stream will contribute to
DES’s understanding of diversion rates, and, as a result, assist the State in implementing the
statutory waste reduction goals and hierarchy. See RSA 149-M:2, :3, :11, III(b).

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some of it that they would normally send to the landfill.” The Director of DES’s
Waste Management Division stated he believed that WMNH, which provides at
least some waste management services to customers in approximately 80
percent of New Hampshire communities, communicating with its generators
about their diversion rates “will result in significant improvements in the
diversion rates of their customer base.” This work will, according to DES
witnesses, assist the State in meeting its diversion goals.

Condition 21’s requirement that WMNH work with fifteen or more waste
generators further supports a conclusion that the permit assists the State’s
efforts to achieve its waste reduction goals and hierarchy, irrespective of which
generators collaborate with WMNH. The senior manager for WMNH explained
that WMNH already does “a form of that regularly,” and will now “make it a
little more robust.” He also explained that he expects some waste generators
will be uninterested in working with WMNH to increase their diversion rates,
and that WMNH, knowing “the lay of the land,” will be able to select those who
are willing to collaborate to increase diversion. Requiring WMNH to collaborate
with waste generators to improve their diversion methods and decrease the
amount of waste they generate and contribute to TLR-III will decrease the
amount of waste ultimately landfilled, and, accordingly, Condition 21 will
assist the State in achieving its waste diversion goals and disposal hierarchy.
See RSA 149-M:2, :3. In sum, given the evidence before the Council, we cannot
conclude that Condition 21’s ambiguities render the Council’s decision
unlawful. See RSA 541:13; Appeal of Garrison Place Real Estate Inv. Trust,
159 N.H. 539, 543-44 (2009) (reversing a Wetlands Council decision partly
because DES’s determination that a permit condition requiring the permittee to
gather data on the impact of the permit satisfied statutory wetlands protection
requirements was entitled to deference); cf. Derry Senior Dev. v. Town of Derry,
157 N.H. 441, 452-53 (2008) (concluding that a planning board arbitrarily and
unreasonably denied approval of a site plan because “nothing in the record”
supported the board’s justifications for denying approval).10

CLF also argues that the Council erred as a matter of law because
Condition 21’s ambiguities undermined the ability of the Council, and now our

10 We note that DES has discretion to enforce Condition 21 by, inter alia, revoking or
suspending the TLR-III permit if it concludes that WMNH is failing to satisfy Condition 21’s
requirements and does not take action to remedy those failures. See RSA 149-M:6, I (2005)
(authorizing DES to enforce solid waste permits); N.H. Admin. R., Env-Sw 306.03 (establishing
the procedure by which a solid waste permit may be revoked or suspended for good cause
following a DES investigation or inspection). Indeed, a DES employee explained that Condition
21’s reporting requirements would allow DES’s compliance section to assess WMNH’s
adherence to the permit. He further testified that a failure to comply with any permit
provision, for example if WMNH refuses to report diversion data to DES, could result in an
enforcement action by DES, including the assessment of a fine.

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ability, to determine whether the permit provides a “substantial public benefit.”
RSA 149-M:11, III. However, evidence in the record supports the Council’s
conclusion that CLF failed to meet its burden of showing that DES acted
unreasonably in concluding that the permit satisfied the substantial public
benefit requirement. See id. Thus, we conclude that neither the Council’s nor
our ability to review DES’s determination is impeded by the lack of a precise
definition of the diversion calculation method or standards for selecting the
generators with which WMNH will work.

CLF points us to Society for Protection of New Hampshire Forests v. Site
Evaluation Committee, 115 N.H. 163 (1975), and Hampton National Bank v.
State, 114 N.H. 38 (1974), in support of its argument that Condition 21’s
“vague and ambiguous nature” inhibits our ability to determine whether the
permit provides a substantial public benefit. Yet, as CLF acknowledges, both
decisions “address the need for agencies to provide written findings in their
decisions,” not whether an ambiguous permit condition is necessarily unlawful
because it frustrates appellate review. See Society for Protection, 115 N.H. at
175 (remanding for “the site evaluation committee [to] provide basic findings of
fact on the existing record to support the ultimate conclusions it has reached”);
Hampton Nat’l Bank, 114 N.H. at 45 (“We hold that the written findings made
by the board in this case constituted a sufficient ‘record’ . . . .”), overruled by
Appeal of Portsmouth Trust Co., 120 N.H. 753 (1980).

Finally, CLF argues that the Council erred because, by premising its
denial of CLF’s appeal upon DES’s and WMNH’s future negotiations to
determine how diversion will be calculated, the Council’s decision subverts the
process of administrative procedure, relies upon extra-record facts, and strips
CLF of its statutory right of appeal. CLF further argues that the Council’s
decision deprived it of its due process right to challenge whether the permit
provides a substantial public benefit. These arguments are unavailing
because, as discussed above, Condition 21’s ambiguities did not render DES
incapable of determining that Condition 21 provides a substantial public
benefit. Accordingly, that DES and WMNH will ultimately decide which
materials will be included in the diversion calculations for purposes of
Condition 21 after the permit is granted does not, as CLF argues, “place[]
beyond . . . CLF’s ability to be heard on appeal[] the question whether the
permit . . . will satisfy the substantial public benefit standard.”

“The fundamental requisite of due process is the right to be heard at a
meaningful time and in a meaningful manner.” Appeal of Portsmouth Trust
Co., 120 N.H. at 758. CLF was afforded an ample and meaningful opportunity
to present its objections to the permit and the terms of Condition 21, including
a five-day hearing during which it presented testimony and cross-examined
WMNH’s witnesses and the Council accepted exhibits. In particular, CLF was
provided with the opportunity to, and did in fact, vigorously contest whether

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Condition 21’s terms sufficiently allowed DES to determine that the permit
provides a substantial public benefit. See RSA 149-M:11, III.

We offer one observation in conclusion. Neither the legislature, by
statute, nor DES, by rulemaking, has defined how diversion rates should be
calculated. The lack of a statewide definition makes it problematic, even with
robust data, to determine where the State stands with regard to the 40 percent
diversion goal set forth in RSA 149-M:2. In light of the Council’s finding that
DES is incorporating conditions similar to Condition 21 into other waste
management permits, we encourage the legislature or DES to establish a
method by which diversion rates will be calculated.

IV. Conclusion

For the reasons stated above, we affirm the Council’s decision.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

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