Some lawmakers expressed concern that the proposed bill might violate the Commerce Clause of the U.S. Constitution. (Dana Wormald | New Hampshire Bulletin)
A bill to study the amount of out-of-state waste entering the Granite State will now head to Gov. Chris Sununu’s desk after passing both the House and Senate by a voice vote.
Last Thursday, the House passed Senate Bill 159, which will establish a committee to investigate the relationship between out-of-state solid waste and unlimited service area permits for landfills.
An unlimited service area landfill is permitted to accept waste from any source, including those out of state. A limited service area landfill can accept trash only from certain geographical areas, such as counties or municipalities.
According to Sen. Donovan Fenton, the Keene Democrat who introduced the bill, “[its] purpose is to prohibit the Department of Environmental Services from issuing any future unlimited service area landfill permits.”
New Hampshire has three municipal solid waste landfills with unlimited service areas: North Country Environmental Services (NCES) in Bethlehem, the Mount Carberry Secure Landfill in Success, and the Turnkey Landfill in Rochester.
Waste Management operates the Turnkey Landfill. During the Northeast Resource Recovery Association’s annual conference on Tuesday, Director of Disposal Operations Steve Poggi said because of diminished waste capacity in Connecticut and Massachusetts, “there’s a lot of material that’s getting on trains to New York, Ohio, Alabama, Indiana. We’re getting requests to take more out-of-state waste. There’s a need south of the border.”
Last November, the state’s Department of Environmental Services published a 10-year Solid Waste Management Plan which reported that from 2018-2020, nearly half of the state’s solid waste came from out-of-state.
“We are seeing New Hampshire slowly become a dumping ground for trash from other states,” Fenton said during a public hearing held by the House Committee on Environment and Agriculture in April.
The DES plan also aimed to cut solid waste and construction debris 25 percent by 2030 and 45 percent by 2050.
Fenton argued out-of-state waste was not addressed adequately by the plan. He pointed to a law passed in Maine as a model for the sort of action the state might take. The law, which prohibited out-of-state waste from being dumped at state-owned landfills, went into effect in February of this year.
However, some lawmakers expressed concern that the proposed bill might violate the Commerce Clause of the U.S. Constitution.
According to DES’ Solid Waste Management Plan, “the Commerce Clause of the U.S. Constitution has commonly been interpreted to preempt a state from explicitly prohibiting or adopting policies that would restrict a commercial solid waste facility from accepting and disposing of out-of-state waste.”
Sen. David Watters, a Dover Democrat sponsoring the bill, argued during a Senate hearing in February that the bill is not explicitly prohibiting the import of out-of-state waste and therefore remains constitutional.
Fenton suggested that the ultimate goal of the study committee is to better inform lawmakers on this issue so they are prepared to find solutions.
Rep. Nicholas Germana, a Keene Democrat, suggested that failing to act could cost Granite Staters.
“If you have a landfill closer to you, and it is filling up with almost half of the trash being brought in from out of state, then the result is ultimately that your local trash then has to be shipped further,” he said. “You’re talking about tipping fees going up and increased costs.”
The bill is expected to arrive at Sununu’s desk in the coming weeks.
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