"Landfill legislation - if we're going to kick the can down the road, let's at least do it right"

My Turn, by Eliot Wessler in the April 21, 2023 edition of the Concord Monitor:

The NH House Environment & Agriculture Committee has essential work to do next week — it needs to fix a Senate bill badly in need of fixing. The Senate bill is well-intended. It would help ensure that landfills will not be located in places that put New Hampshire residents at undue risk, including PFAS contamination and other environmental hazards that may result from landfill accidents or even normal operations. But the Senate bill has significant problems that must be addressed.

Backing up, weeks ago HB 56 passed in the House with overwhelming bipartisan support. But it died last week on a voice vote in the Senate. HB 56 is the bill that would replace outdated and dangerous landfill siting rules, specifically the requirement for a setback of a mere 200 feet from a perennial water body.

It’s a good bet that if the Senate were voting strictly on merits, HB 56 would pass. It’s a common-sense bill that would cost New Hampshire taxpayers nothing. It would replace the existing arbitrarily-determined 200-foot setback with a science-based, site-specific approach to minimizing risks from new landfills. It’s an even better version of a bill from last year (HB 1454) that was approved by the Senate on an overwhelming 16-8 vote.

But politics got in the way. Gov. Sununu vetoed last year’s bill, and wary of having to deal with another veto override vote, the Senate, unfortunately, settled on a bill that kicks the can down the road.

The Senate bill (SB 61) puts important decisions on risk management and public health into the hands of a contractor. It provides for $150K in funds for a contractor to study landfill setbacks, even though both the House and Senate have heard hours of testimony from health scientists, engineers, hydrogeologists, and others, more than enough to make hard decisions.

HB 56 is a far better bill than SB 61, but the reality is that some version of SB 61 is much more likely to pass, and if passed, to be signed by the governor. In concept, SB 61 is not awful, but it’s far from a good bill. It’s now up to the House Environment & Agriculture Committee and ultimately the full House and Senate to make the significant changes needed to make SB 61 a good bill.

If we’re going to kick the can down the road, let’s at least do it right.

Here’s a thumbnail of the major changes needed to make SB 61 a good bill: Rule out conflict of interest. There must be a requirement that bidders on the $150K contract be as free as possible from financial conflicts of interest.

As it now stands, a contractor with significant financial ties to a prospective landfill permit applicant could be awarded the contract.

Rule out undue technocratic bias.

The existing language of the bill favors contractors that design and construct landfills. It is well-known that such firms invariably tilt toward the conclusion that landfills are so well-engineered that it doesn’t matter much where they are located. To counteract this bias, the bill must require that contractors have experience not only in landfill engineering and hydrogeology, but also in identifying and evaluating environmental and health risks. This is critical because some contractors put so much faith in the power of technology they fail to adequately recognize the consequences of technology failure. The best contractor will be one that gives due consideration to the limits of landfill technology and the benefits of equitably managing environmental risks.

Close the loopholes. The existing language creates two giant loopholes that would allow a landfill developer to game the law. First, no landfill permit application should be accepted until the study process is complete and a new setback rule has been issued.

This change is needed to deny the possibility that a permit application will be filed in an attempt to unduly influence the rulemaking process.

Second, in the event of a delay in the issuance of a new setback rule, the default should be a site-specific setback requirement that (at a minimum) follows the principles of HB 56. Failure to close this loophole could result in the permitting of a new landfill under what everyone agrees is outdated and dangerous rules.

The process must be transparent. Given the high stakes involved and the political muscle of the solid waste industry, there is widespread public concern that political interference and ideology may drive this process. The way to solve this is to embed within SB 61 assurances that the entire process will be made transparent, including providing significant opportunity for the public to review and comment on the contractor ’s work, and prior to issuance of a new setback rule.

Here’s hoping the House (starting with the Environment & Agriculture Committee) will send SB 61 back to the Senate with the necessary changes to ensure that landfill setback rules are done right.

(Eliot Wessler of Whitefield works with a number of grassroots environmental organizations in New Hampshire’s North Country.)

Copyright © 2023 Concord Monitor 4/21/2023


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