CONCORD — An environmental-law organization urged the New Hampshire Supreme Court to send a permit for the Turnkey Landfill expansion back to the state Department of Environmental Services after a regulatory board tied 3-3 over one provision of the permit.
The tie vote by the state Waste Management Council kept alive the permit, the last of six granted by the DES for a 59-acre expansion of the Rochester landfill.
During oral arguments on Tuesday, the Conservation Law Foundation said the wording of one provision of the permit was too vague.
The provision requires the Waste Management company to demonstrate that its customers, which include cities and towns throughout the region, have diverted 30% of their trash from the waste stream.
CLF worries that the vague wording will allow Waste Management to claim credit for diverting waste that it is not allowed to accept at its landfill, such as tires and appliances. That would mean no impact on the goal of expanded recycling and other waste reduction measures.
“Flexibility in this context doesn’t make sense,” CLF director Tom Irwin told four justices during oral arguments. The Waste Management company already claims it diverts 34% of its potential waste stream, he noted.
A lawyer for the landfill company said the Waste Management Council held a five-day hearing on the permit, and CLF lost on all Council votes, including the 3-3 tie.
“What CLF is asking this court to do is micromanage the (DES) in determining what counts as diversion,” said Mark C. Rouvalis, who represented the Houston-based Waste Management company.
He said the justices should leave it up to DES to define what qualifies for diversion. He said flexibility is needed because waste stream changes over time, given factors ranging from a pandemic to decisions by trading partners that affect recycling markets.
He said the state Attorney General joined the Waste Management company in its briefs in the case.
CLF wants the Supreme Court to send the permit back to DES for more specific language. DES favors the permit as written.
A Supreme Court decision on the matter involves the final permit the agency will need to issue before the expansion begins, according to Jim Martin, a spokesman for the DES. Permits have already been issued for solid waste, terrain alteration, wetlands, groundwater management, air emissions and air-emissions/construction.
The Turnkey Landfill has been operating since 1979 and secured permits for multiple expansions. The permit, allowing for 15.9 million cubic yards of trash, will run to 2034.