Next year, the Department of Environmental Services’ (DES) rules regarding the citing of landfills in New Hampshire are due to expire.
The current 30-year old rules require a mere 200-foot minimum setback from bodies of water. Recognizing the complete inadequacy of these rules, a bipartisan majority in both houses of the legislature passed legislation last session to bring New Hampshire’s siting codes into the 21st century, only to see these efforts vetoed by a governor in the pockets of corporate interests. The House voted overwhelmingly to override the veto, but the Senate failed to deliver for the people and public health.
This year, we continued the fight against special interests. I wish I could say we won.
HB56, sponsored by Hillsborough Rep. Megan Murray (D-Amherst), offered an important step in the right direction. Instead of an arbitrary setback distance, HB56 would codify a minimum five-year distance from any perennial body of water, based on seepage velocity of groundwater between the landfill site and the protected body of water. This would allow ample time for detection of landfill leaks and remediation efforts long before our rivers, streams, ponds, and lakes are polluted.
This legislation would have made an important statement about the legislature’s defense of public health and safety, without imposing undue regulatory burdens on companies applying for permits to open landfills in our beautiful state. HB56 passed the House in March with broad bipartisan support but the Senate sided with Gov. Sununu and corporate interests (i.e., Casella Waste Management) to kill the bill in April.
When we were hearing HB56 in the House Environment and Agriculture Committee, Republicans told us there was a better bill coming from the Senate, one that could provide the protections we were looking for and actually be signed into law. If only that were so. SB61 would put in place a 24-month abeyance on landfill permitting while DES hires a consultant and writes new rules based on recommendations.
During public hearings, assistant commissioner of DES Mark Sanborn repeatedly threatened that any amendments offered by the committee would cross the lines drawn by the “stakeholders” he represented and lead to a veto. When asked who these stakeholders were, his response was pretty transparent – the governor and business interests. He added “the public” as an afterthought.
The Environment and Agriculture Committee held a public hearing and a public work session on SB61 before the final executive session on May 23rd. Democratic leadership worked hard with Senate sponsors, an industry lobbyist, and a representative from North Country Alliance for Balanced Change to find compromise language that would ensure at least some integrity in the process of choosing a consultant and writing rules based on their report.
Our concern was that DES could, and would, hire a consultant to write a report to suit the special interests that have already clearly expressed their opposition to stringent standards to protect public health and the environment. (Everyone can see this sham process at work right now in the Department of Education’s current rule-writing.) Their repeated efforts to neuter proposed changes to SB61 to put the public over corporate profits confirmed our concerns.
During the sausage-making legislative process, we often hear the old cliché “You can’t let the perfect be the enemy of the good.” Cliché though it is, it is also often sound advice. I tried hard to accept the argument that something would be better than nothing, and that the abeyance would give us time to conduct oversight and take future action to steer the rule-writing process.
The more I had to tell myself that this bill was better than no bill, the more I came to realize that I was trying to convince myself to vote for legislation that I could not support. For me, the straw that broke the camel’s back came when the industry lobbyist flat out refused to accept two small but important changes – changes that speak directly to the intent of the legislation and the integrity of the process.
First, the bill as written calls for rules that take into account “representative travel time” of groundwater. “Representative” is purposefully vague and would allow for tests to be repeatedly made in areas developers know will provide a low average. You could drill over and over again in a 50-square foot space that you know will yield the results you want and submit this data as “representative.”
We proposed amending the language to take into account “variability across the site,” ensuring data that is genuinely representative of the hydrogeology of the site. This effort to prevent cherry-picking data by economic interests at the expense of the environment and public health was declared impermissible by the industry lobbyist.
Even more blatant was their unequivocal rejection of efforts to change the language calling for “adequate protections” of water sources with the language used in the Clean Water Act, “to protect perennial surface water with an ample margin of safety.” They rejected language that calls for “an ample margin of safety”!! That tells you everything you need to know.
This isn’t about the perfect being in the enemy of the good. What is left of the good in legislation that is so thoroughly shaped by the industry it purports to regulate? How can we honestly say we expect the rule-writing process to have any more integrity?
I hope my committee colleagues who voted for the bill (colleagues whom I respect and whose integrity I do not doubt) are correct and we can exercise sufficient oversight in this process. I am doubtful, but despite my doubts I will remain engaged, critical, and vocal in my opposition to corporate power putting profits over people and the environment.