Navigating Environmental Permitting Issues
With each passing decade, debates surrounding environmental issues have become more common across the nation. Here in New Hampshire, the Town of Hopkinton has found itself at the center of one such debate, with officials and concerned citizens joining forces in an effort to protect air and water quality for the community.
New Hampshire cities and towns can expect that local environmental issues will become increasingly contentious. The conflicts will occur in different forms: pressure to preserve open space versus development; industrial uses versus desires to preserve and enhance air and water quality; and, disagreements over the use of common resources, such as private versus commercial ground water withdrawals. Of course, such conflicts are not new. However, the frequency, intensity and sophistication of these conflicts will likely increase. In fact, that is already happening.
Two main factors will combine to drive this phenomenon: population growth and a better informed citizenry. New Hampshire’s population grew 11.4 percent from 1990 to 2000, and 5.2 percent from 2000 to 2004. New Hampshire is growing faster than any other New England state. Since this trend is likely to continue, it is reasonable to assume that as more people compete for increasingly scarce resources, there will be more conflict. The other factor intensifying these conflicts is a better informed citizenry. In the age of the Internet, access to information has improved dramatically. Consequently, citizen activists are better able to collect information, marshal it in support of their positions and influence the development process.
New Hampshire municipal officials can ease, or even eliminate, such local conflicts by being proactive. This effort should begin with two steps: (1) identify potential environmental issues that are likely to confront your community in the near future, and (2) develop a strategy now for addressing them. Of course, sometimes, it may be difficult or even impossible to foresee such issues. For example, there may be no way to predict that a new and controversial industrial facility may wish to locate in your town. But it is not necessary to predict these future events with specificity in order to plan for them. The Hopkinton case illustrates this point and provides some valuable lessons to town officials regarding this topic.
For the last several years the Town of Hopkinton, joined by a substantial number of energized citizens and, at times, the State of New Hampshire, has been involved in a dispute with a company called Bio Energy (also known as Regenesis). Bio Energy historically operated a small wood-burning power plant in Hopkinton. Several years ago, the company sought approvals to burn fuel derived from construction and demolition (C&D) debris. The Town of Hopkinton, as well as several local groups, had significant concerns about the project, and the processes undertaken to authorize the project. The lessons learned from this debate, which is still occurring, are instructive for other town officials throughout the State.
The Evolution of the Dispute
In 2001 Bio Energy began exploring the possibility of burning C&D-derived fuel. C&D-derived fuel is made from the wood waste materials that are separated out from non-combustible construction and demolition debris. These wood waste materials may be contaminated. For example, the wood could be coated with lead paint. If the contaminants are not removed before combustion, they could be released into the environment. Consequently, many people have expressed concern about burning such material.
Bio Energy’s plan to burn C&D-derived fuel required the company to obtain several new state and federal environmental permits. It also raised the question of whether any additional town approvals would be required.
With respect to state approvals, Bio Energy required a solid waste permit and an amended air permit. In May 2002 the New Hampshire Department of Environmental Services (NHDES) issued a solid waste permit to the company authorizing the development of an incineration facility to burn C&D-derived fuel. The solid waste permit was necessary because C&D-derived fuel is a regulated solid waste in New Hampshire. The State also issued a revised air permit to Bio Energy in July 2003. In September 2003 Bio Energy began constructing the modifications at the facility that would allow it to burn C&D-derived fuel.
Local Concerns Began to Grow
Shortly after the issuance of the air permit, officials and citizens of the town became concerned about the project. Many things contributed to these concerns but one driving factor involved the emission limits contained in the revised air permit. The permit would have allowed the facility to emit up to 2.6 tons per year of lead and 31 pounds of mercury. Several citizen groups formed in Hopkinton at that point to oppose the project. John Friberg, vice president of one such group (Residents Environmental Action Committee for Health, or “REACH"), explained their concerns: “The more people in the community learned about the C&D proposal, the more concerned they became. Almost overnight, an amazing coalition of community members came together to form REACH, initially to determine what was going on, and then to consider what courses of action were available to citizens. It quickly became apparent that, apart from actions involving state and federal environmental regulators, it was essential to get the attention of town officials and to work through all avenues available at the local level."
In September 2003 representatives of the community petitioned the selectmen to take action against Bio Energy based on concerns about the emissions from the plant, as well as the change in fuel use (from wood to C&D-derived fuel). In response, the Board of Selectmen convened an informational meeting, inviting representatives of Bio Energy and the NHDES in order to address these issues. The meeting lasted more than four hours and provided residents with the opportunity to question the procedure used by NHDES to issue the permits and the actions to be undertaken by Bio Energy to mitigate the emissions from the plant. According to John Friberg, this early town action was well received: “Although the environmental considerations at issue are of national, indeed global relevance, this was truly a case of ‘think globally, act locally’ in action from the very beginning. It was very heartening to have local officials open to hearing citizens’ concerns and amenable to addressing them with tools available on the local level."
On October 7, 2003, the Board of Selectmen met to consider these issues further. The board concluded that Bio Energy was required to seek a permit from the town because of the change in fuel use. Selectman Don Lane explained the basis for this decision: “the change of fuels required new permitting by the state…[and] the Town now has every reason to conclude that the change of fuel constitutes a change of use—therefore it requires them to apply for a new permit." Lane further noted that “since 1983 knowledge of the impact of pollution has increased dramatically and sensitivity to health risks caused by pollution has increased…The sensitivity to the health risks is not only caused by the quality of the air because of the location, there is concern about the quality of the water because of its (Bio Energy Plant) proximity to the Contoocook River." Consequently, the Board of Selectmen urged “Bio Energy to make application to the Zoning Board of Adjustment and/or Planning Board … by October 17."
The Town and Others Take Action
Bio Energy did not file the applications and consequently, the Town issued a Cease and Desist Order. In turn, Bio Energy sued the Town claiming that these issues were preempted by State law. The New Hampshire Supreme Court ultimately resolved that case in December 2005. The Court ruled that State law preempted local law in this situation.
At the same time that the court case was proceeding, the citizen groups and the Town explored various other avenues to address their concerns. They often worked in unison, since they had many interests in common. One important difference, however, was the ultimate goal. Throughout the process, the Town’s goal was clear: it wanted to ensure that Bio Energy complied with all applicable legal requirements. Its entire approach was based on achieving that goal. The citizen organizations shared that goal, but many citizens were also generally opposed to the facility operating in any manner in the town.
The dispute unfolded on several fronts. In the New Hampshire Legislature, various bills broadly addressed issues associated with construction and demolition debris. During the 2004 Legislative Session, numerous bills were introduced to impose stricter emission standards on C&D incineration. Ultimately, during the 2005 session, House Bill 517 was passed. It established a committee to study issues relative to construction and demolition debris, and it imposed a moratorium on the incineration of construction and demolition debris until July 1, 2006. The Legislature also passed House Bill 315, referred to as the “BACT bill" (for Best Available Control Technology). The BACT Bill was designed to impose more stringent pollution control standards on facilities burning C&D-derived fuel. Although these legislative efforts were driven by many dedicated participants, REACH certainly played a central role in leading that effort.
On the regulatory side, there were several developments. In the fall of 2004, the Town formally raised concerns about the facility’s revised air permit. The Town provided formal notice, pursuant to the federal Clean Air Act, that it would consider filing a lawsuit if, what it argued were violations of federal and state air laws, were not addressed. These concerns were temporarily set aside in November of 2004 when the State of New Hampshire, through the Attorney General’s office, commenced an action to revoke the facility’s solid waste permit.
The State began that revocation proceeding because, it alleged, the permit applicant made “a false or misleading certification" in the solid waste permit application. The Town and the citizen groups joined in that effort, although the New Hampshire Attorney General’s office continued to lead the process. On June 23, 2005, after an extensive administrative hearing, the New Hampshire Department of Environmental Services revoked the facility’s solid waste permit. Bio Energy appealed that decision. Although the permit remains revoked, the issue will not be completely resolved until all the appeals have been exhausted.
In the fall of 2005, Bio Energy announced its intention to resume operations by burning “regular wood sources." At that point, the Town renewed its concern about the air permitting, both with respect to the facility’s initial plan to burn C&D-derived fuel, and with respect to the facility’s new plan to burn clean wood. The Town made clear that it is an enthusiastic supporter of generating electricity by burning clean wood. However, the Town also believed that in order for Bio Energy to resume any operations at that point, it needed to update its air pollution control equipment. The Town raised these issues with the State in several ways, and pressed them through late 2005 and early 2006.
On March 20, 2006, NHDES issued a letter addressing the Town’s arguments. NHDES, joined by the United States Environmental Protection Agency, essentially agreed with the Town’s position. Specifically, NHDES concluded that the facility could not restart operations as it intended under the existing air permit without first evaluating whether further air pollution controls were necessary.
These various State actions have brought some clarity to the matter but the dispute as a whole still remains unresolved. The facility will need to reapply for its air permit. Its solid waste permit status remains in limbo. Moreover, there is ongoing activity in the New Hampshire Legislature regarding issues associated with the handling and combustion of C&D. Substantial uncertainty remains regarding what effect this activity will have on the project.
New Hampshire municipal officials can learn several valuable lessons from these events. As a threshold matter, this story teaches the importance of being proactive regarding environmental permitting. Almost anytime the State of New Hampshire or the federal government is issuing an environmental permit to a facility, there is an opportunity for public participation, including the chance for submitting comments and, often, a public hearing. In fact, the State trial court in the Bio Energy case specifically emphasized that municipalities are encouraged to participate in the permit review process. Towns should develop a systematic approach to monitoring proposed environmental permits in their communities and assessing whether they wish to provide comments during that process. The State, and frequently the permittee, welcome such participation since it is often far more efficient to resolve potential disputes before permits are finalized.
Towns should also consider development trends around the state and plan accordingly. Based on this analysis, if towns wish to encourage or discourage particular uses, there may be opportunities to do so through local zoning. Of course, this process is complicated by the doctrine of preemption, which limits towns’ ability to regulate in the environmental arena to the extent that the state and or the federal government have already done so. However, preemption is often not absolute. Thus, towns still have latitude to address some of these issues on the local level as long as they remain mindful of the extent to which the matter already may be covered by state or federal law.
Frequently, environmental issues do not arise in isolation but rather, they are matters that have statewide or even regional implications. As in the case of C&D, or in the recent past with large groundwater withdrawals and land application of biosolids, the state legislature often plays a role in the resolution of these issues. Town officials confronting environmental challenges should assess the nature of the issue and ascertain whether it is something that, although it may have particular local impacts, is really a matter that merits attention on a statewide level.
Town officials should never underestimate the importance and value of citizen participation. Citizen activists frequently play a crucial role in identifying environmental concerns in a community and then generating a grassroots response to their concerns. In the age of the Internet, where vast amounts of detailed information are readily available, citizen efforts are becoming increasingly sophisticated and effective.
New Hampshire towns primarily rely on the State and the federal government to safeguard their communities regarding broad environmental concerns. However, the State and the federal government are not infallible: they make mistakes. Town officials therefore should not be reluctant to question these entities, seek explanations regarding certain decisions and, where appropriate, request further action. Although it may require some persistence, state and federal governmental officials are very likely to take such concerns seriously and be responsive to them.
In sum, municipal officials have many options for addressing environmental issues in their communities. And in this arena, an ounce of prevention is truly worth a pound of cure.
Barry Needleman is a partner in the Environmental Practice Group of McLane, Graf, Raulerson & Middleton, P.A. He represents the Town of Hopkinton regarding the environmental issues discussed in this article.
Ed Wojnowski currently serves as Town Administrator in Hopkinton; prior to that he was Town Manager in Raymond and Town Administrator in Henniker. Ed also served three terms in the New Hampshire House from 1976-1982.